De Peyster v. Clendining

8 Paige Ch. 295, 1840 N.Y. LEXIS 479, 1840 N.Y. Misc. LEXIS 86

• Court: New York Court of Chancery
• Decided: April 21, 1840
• Status: Published

Opinion

The Chancellor.

There can be no possible doubt as to the validity of the devise of the Sharon farm to the widow for life, provided she elects to reside there so long. If the law had continued as it was when the will was made, in 1829, the legal estate would have vested in the trustees; but they would have held that legal estate, during the time Mrs. Clendining continued to reside upon the farm, as a mere naked trust, for her use. Such a trust is now, by virtue of the 47th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 727,) turned into a legal estate in her, of the same quality and duration and subject to the same condition as the beneficial interest which the testator intended to give her therein. And the trustees, by the subsequent provisions of the will, have only a power in trust, to sell the farm and convert it into money, after she shall cease to occupy it as her residence. (1 R. S. 729, § 56.) She is also entitled to the use of the stock of cattle, horses, carriages, implements of husbandry and farming utensils, which belonged to the farm at the death of her husband, as a specific bequest to her for life, or so long as she continues to reside there. But she must, in conformity to the practice on that subject, give to the administrator an inventory of the articles, specifying that they are in her custody as given to her while she resides on the farm only ; and that when she dies or ceases to reside there these articles, or those which may be substituted in the place of them in the ordinary use of the farm, are to be delivered to the administrator, or to the trustees who may be appointed to carry into effect the provisions of the will. (Slamiing v. Style, 3 Peer Wms. 336. Covenhoven v. Shuler, 2 Paige’s Rep. 132.)

Although this will was made before the revised statutes went into effect, yet as the testator died long afterwards, the validity of the trusts and provisions of the will must depend upon the law as it was when the will took effect by his death. The 70th section of the article of the revised statutes relative to wills of real and personal estate, (2 R. S. 68,) which declares that none of the provisions of that title shall affect the construction of any will previously made, is not broad enough to reach this case. And the other provision of the revised statutes referred to by the counsel for Stuart J. Mollan, on the argument, (1 R. S. 750, § 11,) only applies to wills which had taken effect before that chapter was in force as a law. A will does not take effect from its date but only from the death of the testator. The provisions of the first chapter of the second part of the revised statutes, and of the title of the fourth chapter relative to accumulations of personal property and of expectant estates in such property, may therefore impair the validity of the provisions of a will made previous to the first of January, 1830; provided such will did not take effect by the death of the testator until after that period. If there are any provisions of this will therefore which suspend the power of alienation of real estate for more than two lives in being at the death of the testator, or which suspend the absolute ownership of any part of the personal estate for any longer period, those provisions cannot be sustained.

As the trustees are not authorized by the will to receive the rents and profits of the real estate, but merely to sell the property andconvert it into personalty for the purposes of the will, no estate is vested in the trustees ; but the devise to them is a mere power in trust, under the provisions of the 56th section of the article of the statute relative to uses and trusts. (1 R. S. 729.) And as this power in trust to convert the testator’s real estate into personalty is imperative, under the provisions of the 96th section of the article relative to powers, the real estate, except the Sharon farm, is considered in equity as converted into personalty from the death of the testator ; and that farm will be considered as converted at farthest from the death of the widow, or the termination of one life in being at the testator’s death. No estate whatever being vested in the trustees, as real property, no question arises as to the validity of the trust under the 55th section of the article relative to uses and trusts j as that section is confined to express trusts of real property where the legal title to the estate is vested in the trustees. The question for consideration, therefore, is whether the objects for which the conversion of the real estate into personalty is directed by the testator, are valid. In other words, whether all or any of the trusts upon which the trustees are directed to hold the converted fund are valid as trusts of personal estate.

In the recent case of Gott v. Cook, (7 Paige’s Rep. 521,) this court held that a trust of personal estate might be created for any purpose which was not illegal, so far as related to the mere vesting of the legal title to the property in the trustees. But that all limitations of future or contingent interests in such property, or interests in the future income thereof, were subject to the same rules and restrictions which were prescribed as to similar future or contingent interests in real estate. And in the more recent case of the will of the late Abraham Van Vechten it was decided that in a trust of personal property, or money, a suspension of the absolute ownership as to one part of the fund for a longer period than was allowed by law, did not make void the disposition which had been made of another part of the trust fund. And that where personal estate was vested in trustees upon various trusts, some of which were valid and others void, the courts must sustain those dispositions of the property which were legal if they could be separated from those which were illegal and void. (See Van Vechten v. Van Veghten, ante, p. 104.) Testing the case under consideration by these principles, nearly every provision of this will must be sustained.

Taking one part of the will by itself, it certainly looks as though the testator intended to keep all the property in the hands of the trustees so long as any of his children survived; and to divide the income thereof among the surviving children and the descendants of those who had died leaving issue, even after the death of his widow. But by referring to a subsequent clause of the will it is evident he only intended to suspend the absolute ownership, and the right to the immediate enjoyment by his grandchildren, of the principal of the share of each child in the fund, during the life of the widow and of the child who had a life estate in that share. This last clause provides for the payment of the principal of the share of any child, who has died during the life of the widow, leaving issue, to the issue of such child immediately upon the death of the widow; and that as the children severally die, afterwards, their respective shares shall go immediately to their children, without waiting for the death of the survivors. The absolute ownership of each class of grandchildren, in their respective shares of the principal of the fund, and the right to the immediate possession and enjoyment thereof, is then only suspended during the lives of the parent and of the grandmother. The limitation of the life estate of each child, in his or her original share, is therefore valid, both as to the proceeds of the Sharon farm, and also as to all the other estate of the testator; and the limitations over of such original shares to the children of such first taker upon the death of the parent and of the widow, are also valid s

The testator probably intended to give to Mrs. Hogan and his two sons the income of twenty thousand dollars each, and to Jane and Letitia each the income of forty thousand dollars, for life, and the principal of those sums to their children respectively after their deaths; and to divide the income of the residue of his property, including the amount of the annuity to the widow, after her death, equally among the five children during their several lives, and to give the capital of each share to their children respectively after their deaths. But by mistake he has inserted the capital of the original or primary legacy to each, as an annual payment, As there is nothing, however, upon the face of the will to show that he intended any thing different from what he has expressed, the court must construe it according to the language he has used ; as if he actually supposed his estate might be large enough to produce an annual income of $140,000, besides the provision made for his wife. The effect of such a construction, which is the only legal one which can be put upon this will, is to divide the whole proceeds of the real and personal estate into seven equal shares, after carving out of the same the provision for the widow, and to give to Mrs. Hogan and the two sons the income of three shares, and to Jane and Letitia of four shares, for life; that is, to each of the three first named children the income of one share, and the income of two shares to each of the two last mentioned children. And the capital of the share or shares of each child is what the testator has limited over to their children respectively in case they die leaving issue. The provisions of the will therefore must be carried into effect, according to this construction, as to each of the five children of the testator, interested in these shares, who shall die leaving lawful issue.

The children of Mrs. Hogan and of James Clendining who are now in existence have vested remainders in the capital of the shares of their parents, subject to open and let in after-born children; and subject also to be wholly divested by an entire failure of issue at the death of their parents respectively. But as the children who may be living at the death of the parent, and the personal representatives of such as have previously died, can, upon the death of the widow and the parent, convey the whole interest in that share of the estate, the absolute ownership in that share cannot be suspended beyond the period of two lives in being a.t the death of the testator; to wit, the life of the Widow and the life of the parent who has a life estate in the income of the share. The result will be the same as to the shares of John and Jane, if they should have issue who should survive them. But if any of the four who are now living, should die without leaving issue at the time of their deaths, as was the case with Mrs. Mollan, who survived her only child and died without issue, the capital of their respective shares will be in the same situation in which her two-sevenths of the estate now are j which I will next proceed to consider.

The testator appears to have contemplated and provided for the case of the death of one or more of the five children without issue, during the lifetime of the others ; and has directed in that case that the income of that share shall be divided among the survivors for life, and the capital to go to the children of such survivors at their deaths, if they should leave issue. But as these bequests over to the survivors and their children are not so limited that they must necessarily vest in possession as well as in interest, so as to be alienable during the continuance of any two lives in being at the death of the testator, they are void, according to the decision of the court for the correction of errors in the case of James’s will. And the decision of the same court in the case of Lorillard’s will, shows that they cannot be supported as cross-remainders to any extent, where such cross-remainders are limited among more than two persons. It is true, in the event that has occurred as to Mrs. Mollan’s share, the limitation over of the income thereof to her surviving brothers and sisters has not in fact been suspended longer than her life. But the absolute ownership of that share, if they are to take the income thereof for life from the trustees, will be still further suspended, during their respective lives and the life of the widow, before it can vest absolutely in the grandchildren under the provisions of the will. And in the meantime that share of the converted fund is inalienable, by the operation of the 63d section of the statute relative to uses and trusts, in connection with the second section of the title relative to expectant estates in personal property. (1 R. S. 730, § 63. Idem, 773, § 2. Gott v. Cook, 1 Paige’s Rep. 523.) I must therefore declare these contingent limitations over of the shares of such of the children of the testator as should die without leaving issue, to be inoperative and void. The result is that the income of Mrs. Mollan’s two-sevenths of the estate which accrued previous to her death, subject to the provision for the widow, belongs to her surviving husband as her personal representative. But so much of the capital of that seventh of the testator’s estate as consisted of personal property at the time of his death, belongs to the widow and next of kin, as an interest in personal property not legally and effectually disposed of by his will; subject to the provision for the widow contained in the will. And so much thereof as consisted of real estate belongs to the mother and to the surviving brothers and sisters, as an interest in real estate not legally disposed of by the will; and which therefore belonged to the heirs at law of the testator, notwithstanding the conversion thereof into personalty. (See Leigh & Dalz. Eq. Conv. 99.) Mrs. Bulkley is therefore entitled to an equal share with the other children in this two-sevenths of the estate, and in the income thereof which has accrued since the death of her sister. And if any of the other four children should hereafter die without leaving issue, their shares of the estate, from the time of their deaths, must be disposed of in the same manner. The interests of the testator in his personal estate which were not effectually disposed of by his will, in consequence of the contingency which has happened, or of those which may hereafter happen, belong to the widow and to those who were the next of kin of the testator at the time of his death. Stuart J. Molían, as the personal representative of his deceased wife, will be entitled to her share thereof, which is one-sixth of two-thirds, subject to the provision for the widow. But as Mrs. Molían was not seized in her lifetime of any present interest in possession in the real estate, as such, her husband is not entitled, as tenant by the curtesy, to any interest in her share of the real estate not effectually disposed of by the testator. Under the provisions of the revised statutes, as amended in 1830, (1 R. S. 752, § 6,) the mother, as heir of the daughter, takes an estate for life in one-sixth of that share, and after her death it goes to the five brothers and sisters, or their heirs; as they are now entitled to the other five-sixths thereof, as the heirs at law of the testator.

Although all the trustees named in the will have declined the trust, this court will not permit a devise in trust, which is valid in other respects, to fail for want of a trustee. And if the administrator with the will annexed is not substituted in the place of the trustees who have declined, the trust devolves upon the court; and the decree must direct the appointment of a new trustee in the place of those who have declined to execute the power in trust, to convert the real estate into personalty for the purposes of the will, and to invest the proceeds of the real and personal estate, and distribute the income thereof from time to time according to the rights of the parties. (1 R. S. 730, § 70, 71. King v. Donnelly and others, 5 Paige’s R. 46.)

The revised statutes provide that in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed ; and that the administrators with such will shall have the rights and powers, and be subject to the same duties as if they had been named as executors in such will. (2 R. S. 72, § 22.) There can be no doubt, therefore, that in cases where the execution of a trust, or of a power in trust, is confided by the testator to his executors, as such, they cannot execute the trust without also taking out letters testamentary, and assuming the office of executors. In such cases the administrator with the will annexed is probably entitled to execute all the trusts of the will, in the same manner as if hejhad been named therein, by the testator, as the executor and trustee. The difficulty in the present case, on that subject is, that the testator appears to have intended to give to the three individuals named in his will a distinct character as trustees, entirely independent of their character of executors ; although he has in the concluding paragraph of his will appointed the same trustees to be the executors of his will and the guardians of his minor children. At least there is sufficient doubt on this subject to make it the duty of the court to put the matter beyond all question, by directing a provision to be inserted in the decree substituting the administrator with the will annexed, as the trustee, in the place of the three persons named in the will, who have refused to accept the trust. And any conveyances which he may make, in pursuance of the power in trust to convert the real estate into personalty, should be executed by him both in the character of administrator with the will annexed, and as such substituted trustee; so that upon any construction of the will, and of the provisions of the statute on this subject, the purchaser will obtain a perfect legal title to the lands thus conveyed.

The annuity to the widow must be reduced $500, from the time of the marriage of Mrs. Mollan; whether she continued to live with her mother after the marriage or otherwise. The language of the will on that subject is too plain to admit of any doubt. And if Jane marries, or declines a residence with her mother as her general place of abode, the annuity to the mother is to be reduced the further sum of $500, from the time of such marriage or declension.

As the litigation in this case has been produced by the inartificial manner in which some of the provisions of this will were drawn, it appears to be a proper case to direct that the costs of all parties shall be paid out of the testator’s personal estate. A decree must be entered declaring the construction of the will, and directing the distribution of the estate and the income thereof, by the administrator and substituted trustee, accordingly. The decree must also contain a provision to protect the equity of Mrs. Bulkley, in whatever may belong to her, against her husband and his creditors, in the usual form. The accounts of the complainant, up to the present time, with the several parties interested, must be stated and passed before the taxing master or one of the exception masters of the first circuit, upon due notice to all persons interested in the estate, or their solicitors or guardians. And a provision may also be inserted in the decree, as in the cases of Hawley v. James, (5 Paige’s Rep. 488,) and Gott v. Cook, (7 Idem, 544,) for a periodical or annual passing of the accounts of the complainant; and giving liberty to any of the parties to apply to the court for further directions, from time to time, as may be proper.