Burrill v. Sheil

2 Barb. 457

• Court: New York Supreme Court
• Decided: February 8, 1848
• Status: Published

Opinion

Edwards, J.

The testator, Richard Towning, by his last will and testament, devised and bequeathed all his estate, both real and personal, to the complainants Burrill and Woolsey, residing in New-York, and the defendants Sheil and Ballard, residing in England, upon certain trusts therein mentioned, and appointed the said trustees his executors. Sheil and Ballard refused to qualify as executors, or to act as trustees. The executors were invested by the will with full power, and were expressly directed, to sell the real estate. They were also directed to invest £3000 sterling in England, in the joint names of Sheil and Ballard as trustees, for certain purposes stated in the will. And they were further directed, after paying some specific legacies, to invest the residue of the estate in England, in the same manner; In pursuance of the power and directions given by the will, the complainants have sold the real estate, and have paid and satisfied the debts and legacies, but they are unable to proceed in the execution of the trusts ; owing to the refusal of Sheil and Ballard to invest the estate in England in their joint names as trustees. As a general rule, where several persons are named as trustees, and any of them refuse to accept, and to execute the trust, the estate will vest in those who do accept, and the trust can be executed by them. (In Re Stevenson, 3 Paige, 420. King v. Donnelly, 5 Id. 46.) But in this case one of the trusts in the will can only be executed in the joint names of the persons who have refused to act as trustees. As regards this provision of the will, a particular trust is vested in Sheil and Ballard, which the complainants cannot execute under the general powers given to them by the will. The question then arises whether the trust shall fail, or whether this court will supply a suitable trustee. It is a well settled principle that a court of equity will not permit a devise in trust, which is valid in other respects, to fail for the want of a trustee. (4 Ves. 708. 5 Id. 495. 6 Id. 656. 8 Paige, 295.) And in this case, if the refusal of the trustees to accept is the only obstacle to the execution of the trust, the court should supply the defect. It was suggested, on the argument, that the direction to invest in the joint names of Sheil and Ballard was of the essence of the trust, and that, unless there were such an investment, the trust would fail in toto. . I do not so construe this provision of the will. The direction to invest in the joint names of Sheil and Ballard was evidently not given because of any particular confidence which the testator reposed in them, rather than in the complainants. The chief object which he had in view was to invest in England; and it was merely for convenience that he directed the investment to be made in the names of Sheil and Ballard, as they resided there. But even if he had particular reasons why he wished the investment to be made in their names, rather than in the. names of any other persons, and they fail to act, still there would not be a sufficient reason why the trust should fail. It is enough to warrant the court to interfere, that there is a trust which must fail for the want of execution by the trustees named. And even where a power was vested in the trustee named, to select such persons as “ he thought most deservingit was held that the non-exercise of the power could not prevent the court from giving the property to the objects of the trusts. (Brown v. Higgs, 4 Ves. 708, and note a., Sumn. ed. 5 Ves. 495, S. C. 1 Story’s Eq. Jur. § 98.) This case is clearly one in which a court of equity ought not to permit the trust to fail by the refusal of the trustees to act; but should supply their place by the appointment of trustees. Having come to this conclusion, there can be no doubt that the complainants are the proper persons upon whom the selection should fall. Their respectability and responsibility would, in themselves, furnish a sufficient reason for their appointment. But, in addition to these recommendations, they have been selected as executors and general trustees by the testator, and while they continue in that capacity, they alone should be authorized to execute all the trusts contained in the will.

As to the questions which were raised upon the argument in reference to the power of this court to divert the investment from England, there is one conclusive answer; and that is, that such a change could only be made with the assent of all persons interested. But inasmuch as many of the parties in interest are infants, and are not within the jurisdiction of (he court, the investment must be made in pursuance of the directions contained in the will. (See Wood v. Wood, 5 Paige, 596.)

The next subject for consideration is the construction which is to be given to the will. As no questions were raised as to the legality of the trusts, I shall assume that they are valid. (See Gott v. Cook, 7 Paige, 521, 538; De Peyster v. Clendining, 8 Paige, 305; S. C. 26 Wend. 21.) The limitations contained in the third, ninth and tenth sections, are the only parts of the will in reference to which any doubt was expressed. The will directed that the real should be converted into personal estate. It follows then, according to the principles of equitable conversion, that the will must be governed by the rules of law applicable to limitations of personal property; and by those rules the absolute ownership cannot be suspended by any limitation whatever contained in a will, for a longer period than two lives in being at the death of the testator. (1 R. S. 773, § 1.) I shall consider these questionable sections in their order.

I. Is the power of alienation suspended for more than two lives in being at the death of the testator, under the provisions of the third section of the will? The limitations during the lives of Mrs. Husband and Mrs. Fisher, are unquestionably valid; the absolute ownership of the property not being suspended during the period of such limitations, for more than two lives in being at the death of the testator. The only question which arises upon this section of the will, is as to the limitation over to the surviving issue of Mrs. Fisher. By that limitation the principal sum of £3000 sterling is given to the issue of Mrs. Fisher, to be at their own disposal as soon as they shall have, respectively, and severally, attained the age of twenty-five years; the interest, in the meantime, to be paid to them. And in case of the death of Mrs. Fisher before Mrs. Husband, then the said sum of £3000 is to be divided “ at the death” of Mrs. Husband, amongst the surviving issue of Mrs. Fisher, as soon as they shall have respectively attained the age of twenty-five years. The words “ at the death,” were undoubtedly intended to mean after the death, and should be so construed.

Do these provisions of the will suspend the absolute ownership of the property beyond the lives of Mrs. Husband and Mrs. Fisher ? It is a well settled rule in equity that where a legacy is given to a person to be paid at a particular age, or at the end of a fixed term, he takes a vested interest—debiturn in presentí solvendum in futuro. (Jackson v. Jackson, 1 Ves. sen. 217. Gedney v. Vaughan, 2 Bro. P. C. 254. Bolger v. Mackell, 5 Ves. 509.) And even when there was a bequest to a person when he should have attained the age of twenty-five, and the testator empowered his executors, and trustees to place the money at interest, which interest he directed to be applied at their discretion for the education of the legatees, it was held that he took a vested interest. And the court considered the disposition of the interest to be an indication of the testator’s intention that the legatee should, at all events, have the principal. (Fornereau v. Fornereau, 3 Atk. 645. Hoath v. Hoath, 3 Bro. C. C. 4. Hanson v. Graham, 6 Ves. 239.) In the case now under consideration the principal is given to the surviving issue of Mrs. Fisher, immediately on her death, to be at their own disposal as soon as they shall respectively attain the age of twenty-five years; and, until that age, the executors and trustees are authorized to pay over the interest to the said issue. The words, “ to be at their own disposal,” taken in connection with the disposition of the interest, would, according to the above decisions, confer on the surviving issue a vested interest on the death of Mrs. Fisher; or, in case of her death before Mrs. Husband, on the death of Mrs. Husband. And there is no suspension of the power of alienation beyond the two lives of Mrs. Husband and Mrs. Fisher. (See Gott v. Cook, 7 Paige, 521, 542.)

II. .The next inquiry is as to the proper construction to be given to the ninth section of the will.

It appears by the proofs that Mrs. Hughes, the person during whose life the first limitation, contained in this section, was made, died before the testator. Of course the statute has no application to the limitation to her. (1 S. F. 773, § 1.) The section of the will now under consideration gives the principal sum of two thirds of the residue of the estate to the issue of Mrs. Hughes, nominatim; at her death, to be paid to them as soon as they shall severally and respectively have attained the age of twenty-five years. This bequest is governed by the same rules as have been laid down in reference to the third section ; and on the death of Mrs. Hughes her children take a vested interest.

The last clause in this section of the will, in its connection, refers to the interest accruing before the happening of the event upon which the bequest is to vest in possession; and, in terms, disposes of the interest merely, and not the principal, during that time. Such undoubtedly is the correct grammatical construction, and such should be the legal construction. Any different construction would be inconsistent with the previous absolute bequest of the principal; and could only be given by supplying words which have not been used by the testator. There is no limitation for more than two lives in being at the death of the testator under this section of the will.

III. The questions which were raised upon the tenth section are, in most respects, similar to those which have been already considered. By this section the interest upon the remaining one-third of the residue of the estate is given to Mrs. Bayne for life, and on her death the principal sum is given to the issue of Mrs. Fisher, as soon as they shall have severally and respectively attained the age of twenty-five years; the interest to be paid to them until that age. The phraseology of this section is, in some respects, different from that of the third and ninth sections. The principal sum is given to the issue of Mrs. Fisher as soon as they shall attain the age of twenty-five years. And, in the mean time, the interest is to be paid to them absolutely. According to the cases above cited, a bequest to a person when he should attain the age of twenty-five years, and an authority given to the executors and trustees to place the money at interest, with a direction to apply the interest to the education of the legatee, was considered a bequest of a vested interest.

The last clause of this section of the will is substantially the same as the last clause of the ninth section, and refers to the interest, and not to the principal. There is therefore no suspension of the absolute ownership for more than two lives in being at the death of the testator, under this section of the will. It appears by the proofs that Maria Hughes, one of the legatees mentioned in the ninth section of the will, died before the testator ; and two questions were raised upon the argument, 1. Whether her legacy lapsed; 2. If it did lapse, who is entitled to it? As these questions are not raised by the bill, and as the rights of the parties cannot be satisfactorily settled upon the case as it is presented to me, I shall not express any opinion upon either of these questions.

A decree must be entered declaring the construction of the will according to the principles above laid down; and directing that the complainants be appointed trustees in the place of Sheil and Ballard, and be authorized to invest in England, in their own names, all the moneys which were directed by the will, to be invested.in England in the names of Sheil and Ballard ; and that they be clothed with all the powers as trustees which the said Sheil and Ballard would have been invested with in case they had accepted the trust conferred upon them by the will. And that the costs of all the parties be paid out of the estate in the hands of the executors.