Fellows v. Heermans

4 Lans. 230

• Court: New York Supreme Court
• Decided: December 15, 1870
• Status: Published

Opinions

By the Court

Hogeboom, J.

This is an appeal by the plaintiff from a judgment at Special Term, dismissing the complaint in this action. The object of the suit was to set aside three several deeds (or instrument purporting on their face to be such) by the plaintiff to the defendant of all the plaintiff’s real and personal property for certain purposes therein declared, or more correctly speaking, two of them purporting to be such deeds, and the third purporting to make a distribution of the proceeds of the rents and sales realized under the second, so far as they were not disposed of by the plaintiff himself. These deeds are severally dated on the 3d, 10th and 15th of October, 1868. The grounds upon which they were sought to be set aside, and which are, more or less, distinctly presented in the complaint and subsequent proceedings,- are •substantially, as follows:

1. That the deeds themselves were neither absolute conveyances nor valid conveyances in trust, but mere powers of attorney, and revocable in their nature; and, in fact, revoked by the grantor.

2. That at all events the plaintiff supposed them to be so, and was encouraged, or, at least, not undeceived in that belief by the defendant; and having acted under an uncorrected misapprehension of their legal effect, was entitled to relief against them; and, in fact, to have them revoked and annulled.

3. That the defendant, in addition to the non-disclosure by him to the plaintiff of the true legal character and effect of the conveyances, practiced undue influence and positive fraud upon the plaintiff, in procuring their execution.

These grounds of relief will be severally examined ; and in doing so, the questions considered. 1. How far the plaintiff" is entitled to relief upon the face of the instruments themselves; and, 2, upon extrinsic facts. To determine these questions it will be necessary to examine, critically, the contents of these instruments.'

The first is dated on the 3d day of October, 1868 ; and after reciting that the plaintiff, from his infirmities and advanced age, deemed it expedient to convey to his nephew, the defendant, all his property, proceeds in consideration of the premises, and of one dollar to grant and convey to the defendant, his heirs and assigns, all his real and personal estates, by general words of description, with a proviso that he should sell the lands, by retail, for the best prices obtainable, and convey the same, in fee simple, to the purchasers, with covenants, binding his heirs to warrant and defend the same; and further directing that the avails of the said real and personal estate should he paid and distributed, as follows: 1st. To pay over to the grantor, during his life, all moneys received.

2d. Afterward to apply the same, first, to the payment of his just and legal debts and the expenses of the trust, and then to distribute the residue as directed in a subsequent writing to be executed by the plaintiff, or, in default thereof, to his heirs.

The second instrument, which seems to have been executed to supply a supposed defect in the first, and, mainly, an omission to provide for the disposition of the rents and profits of the real estate until sold (the first instrument having been canceled, or attempted to be, by the grantor, and his signature thereto erased), bears date on the 10th day of October, 1868, and is substantially similar-to that of the 3d of October, except that it contains this clause: “ And until the said lands shall be sold as aforesaid, he shall rent such of them as can be rented for the best prices that can be gotand except, also, that, after providing that the avails of the property should be paid and distributed, first, to defray the expenses of the trust, he provides, secondly, that, during his life, “ the residue of all moneys received shall be paid over to me, or appropriated to my uses, under my direction.”

The third instrument bears date the 15th day of October, 1868, and seems to have been executed simply as the supplementary paper for distribution provided for in the deed of the 10th of October. It refers to the paper of the 10th by its date; recites the substance of its provisions; declares this to be executed, as supplementary to that, and explanatory of his intention thereby; and then proceeds to direct the defendant, describing him as “ trustee as aforesaid,” “ to distribute the aforesaid moneys and property,” first, to the payment of certain annuities (specifying them); secondly, to convey certain specific portions of real estate to particular persons; and, thirdly, to divide the residue of the avails among certain nephews and nieces (naming them).

These are the provisions of the said instruments; and it will he necessary to .examine each of them.

The deed of the 3d of October, though attempted to be canceled, probably could not be, even with the consent of both parties to the instrument, unless it was, in legal effect, a power of attorney, and revocable in its character. For the grantor and the grantee were not the only persons interested in its provisions. The beneficiaries under it had, I think, a vested interest; and, although they have not yet been named (for the paper of the 15th of October seems to be simply in execution of that of the 10th), I think they still may be, if the instrument of the 3d of October confers a valid trust, or a valid power in trust. And such a supplementary paper, inasmuch as no time is limited for its execution, will, as it seems to me, be, in such event, a valid execution of the power of. distribution therein reserved. It will be necessary, therefore, to consider the question, whether it contains a valid trust, or valid power in trust. This .question is ,ono of some interest in the case, and, I think, calls for a decision, although it is undeniable that it has not such cl,ear and definite characteristics as the subsequent instrument of October 10th,

As an express trust, I incline to think the instrument is void, for it is neither a trust.

1. To sell lands for the benefit of creditors; nor,

-2. To sell lands for the benefit of legatees; nor,

. -3d. To receive (expressly) the rents and profits of lands, and apply them to the use of a person for life, or for any shorter time (although I do not see why a conveyance of the lands, with directions to sell and pay over the avails, do.es not carry with it an implied power to receive the rents until an .actual sale); nor,

4. To receive the rents and accumulate the same. (1 R. S., 729; 3 R. S., 5th ed., 16, § 55.)

But I am inclined to think it confers a valid power intrust, for it is a power to sell lands which the grantor plight lawr fully perform (1 R. S., 732, § 94,) [74] ; an.d a genej'al power authorizing the alienation, in fee, to any person whonisoever (§ 96,) [77]; and a general power in trust, because the grantor, or after his death, third persons are designated, as entitled to the proceeds resulting from the alienation of the lands. (1 R. S., 734, §114,) [94.]

This aspect of the case has not been particularly discussed ; but such are my views, without the benefit of an argument of the question.

But whatever doubts may exist as to the character of the paper of the 3d of October, that of the 10th seems to be reasonably clear as to its true construction and legal effect. It contains, in the first place, a conveyance for a specified consideration of the property to the defendant; next a direction or provision for the grantee to sell the same, by retail, with covenants of warranty; and, until sale, to rent the real estate, so far as practicable, for the best prices obtainable; next a direction to collect his debts ; and, lastly, a provision to pay and distribute the avails of the real and personal estates: First, to defray the expenses of the trust. Secondly, to pay to the grantor, during his life, or appropriate to his use, under his direction, the residue of all moneys received. Thirdly, after his decease, and the payment of his debts and the expenses of the trust, to distribute the residue, as directed in a supplementary writing, to be thereafter executed; or, in default of such writing, to his heirs.

A supplementary writing referring to the paper of the 10th of October, and in strict accordance therewith, is found in the paper of the 15th of October, 1868.

It is not, as I understand, denied that the deed of the 10th of October, so far as it directs, the receipt of the rents and profits of the lands, and their application to the use of the grantor during his life, or the shorter term which should intervene before a sale of the real estate would, if it stood alone, without other provisions in the deed, constitute a valid trust within subdivision 3, of section 55, of the article in the Revised Statutes on uses and trusts. (1 Rev. Stat., 729.)

The doubt which was once entertained whether a trust “ to pay over ” was equivalent to a trust “to apply to the use of;” and whether the cestui qtie trust could be the grantor or creator of the trust himself no longer exists, being removed by express adjudication. (Leggett v. Perkins, 2 Comst., 297; Matter of Livingston, 34 N. Y., 555.)

But I understand it to be claimed, first, that the provision, as to the rents and profits, is not the main, but only a subordinate purpose of the grant, and, secondly, that there is not a suspense of the power of alienation which is deemed indispensable to constitute a valid trust.

As to the first objection, it is not quite certain (though I admit it is probable) that sales, and not leases, were the chief objects of the grantor. We have no adequate means of determining how rapidly advantageous sales of the plaintiff’s property had theretofore, or could be thereafter, effected, or whether the resources arising from rents would or would not exceed those arising from sales during the comparatively brief period to which the plaintiff’s life could possibly be protracted. But I think it no sound argument against the application of the law of trusts to the clause disposing of the rents and profits, that the clause in regard to sales was (if it was) inoperative as a trust. The two clauses are not, in their nature, inconsistent, but entirely harmonious; and if both cannot stand as trusts, or trust powers, it is no new thing that parts of an instrument are sustained as valid, while other portions are condemned as inoperative and ineffectual. To sustain the one, and overthrow the other, would not seem to me to be so utterly subversive of the general scheme or purpose of the grantor as to require it to be done; and, hence, if we were obliged to regard' the provision for renting or leasing the property until a sale, or until the plaintiff’s decease, as probably entirely subsidiary and subordinate to the other, I should not feel compelled to erase from the deed this provision for the temporary disposition of the property.

Again, it is said there is no valid trust, because no suspense of the power of alienation. There being a direction to sell and alienate the lands, there could not be, it is argued, a suspense of the power of alienation. In my opinion, such a suspense of the power of alienation is not necessary to constitute a valid trust. Of course, if the exercise of the power of alienation is inconsistent with the purposes of the trust, it is void, or must he regarded as suspended, hut only because it is in contravention of the trust; and such a sale is, by the statute, void. (1 R. S., 730, § 84 [§ 63.] ) So the right of the beneficiaries in the rents and profits is inalienable. (1 R. S., 730 [§ 63.]) But that does not make the lands themselves inalienable. On the contrary, the purpose is ultimate alienation and temporary renting of the lands. Upon alienation and distribution of the avails, the trust ceases. Until alienation, the trust continues; and any sale or act inconsistent with the trust is void. But alienation is not inconsistent with the previous existence of the trust, though it is destructive of its further continuance. A trust to sell lands for the benefit of creditors, or of legatees, is authorized, being directly within the words of the statute (§ 55); and yet, the power of alienation is not suspended, except for the period preceding the exercise of the power of sale, during which it cannot, of course, be exerted in contravention of the trust. The doubt which has arisen on this subject is probably, in a great measure, due to the fact that the cases which have come up for examination were those where the purposes of the trust could not be accomplished without a suspense of the power of alienation. Here, the case is different. Alienation is authorized by the terms of the deed; and the previous suspense, carried to its furthest extent, to wit, for one life, is palpably within the limitation allowed by the statute. (Belmont v. O'Brien, 12 N. Y., 394.)

But if it should be held that the instrument in question does not create a valid trust, then, it seems to me, there is a Valid power in trust; and such an instrument is equally incapable of revocation. It is a valid power in trust, because it calls for the execution of a power which the grantor possessed, to wit, the alienation of his property, without restriction as to the persons who should be alienees for certain designated purposes, to wit, for distribution of the avails to the grantor as to such moneys as should be received during his life, and to certain other beneficiaries specifically named after his death; and, at all events, of a power to receive the rents and profits of lands; pay them, when received, to the grantor during his life, or apply them to his use; and, after his death, to distribute them, after the payment of debts and expenses, among certain specified persons. This seems to me to be within the statutory definition of a valid general power in trust. (1 R. S., 732, 734 [§§ 74, 77, 94.]) And this trust power is imperative. Its performance may be compelled for the benefit of the parties interested therein; and, although the title remains in the grantor, it so remains “ subject to the execution of the trust as a power.” (1 R. S., 729 [§ 59]; id., 734 [§ 96]; Selden v. Vermilyea, 1 Barb., 58; Arnold v. Gilbert, 5 id., 190.)

It is argued that there is no valid power in trust, because a power must either be granted by a clause in a last will and testament, or by a clause in a conveyance of some estate in the lands to which the power relates. (1 R. S., 735, § 106.) And that as the trust is void, the attempted conveyance does not take effect, and is not valid as a trust deed; and hence the title remains in the granter ; and, therefore, it does not come within the definition above quoted, and is not contained in a conveyance of some estate in the lands. But we are not permitted to overlook the other section of the statute which expressly declares that the attempted trust, failing to take effect as such, by reason of not coming within the enumerated classes; and, therefore, passing no estate to the trustees shall be valid as a power in trust of directing or authorizing the performance of an act which may be lawfully performed under a power. (1 R. S., 729, § 58.) These two sections must both have effect, and must be construed accordingly. The section declaring the instruments in which a power might be contained, "was general; and the other must be regarded, if necessary, as an exception to the general rule. But the conveyance is, in fact, of the nature of the conveyances specified in the statute; though, for a particular reason, it is not permitted to take effect as a transfer of title. Nevertheless, it is, in form, a conveyance of lands and for certain purposes, to wit, for the purpose of the power, a valid instrument. Unless we so construe the statute, there never can he a valid power or trust, where a trust estate is attempted to he created, but fails for the reason before mentioned, except in cases where there are other indisputable trusts passing the estate in the instrument besides the one whose validity is in question. This could not have been the intention of the law makers. If section [58] had immediately succeeded section [106] in the statute, I do not think there would have been a moment’s hesitation as to the proper construction. And I think, as they now stand, they should be read together, and as reflecting mutual light on each other.

There is also, I think, a valid trust in regard to the personal property. The Revised Statutes do not apply to trusts of personal property, except as to future and contingent interests therein, and except that the absolute ownership of personal jDroperty shall not be suspended for a longer period than the continuance of two lives in being at the creation of the trust. (1 R. S., 773, §§1, 2; Kane v. Gott, 24 Wend., 641; Brown v. Harris, 25 Barb., 134.)

Here is, plainly, no illegal suspense of ownership; and, as to the personal property, so far, at least, as it existed in money or was converted into money by the collection of debts, it seems to me, the disposition of the personal property was lawful and irrevocable. Whether the whole estate, real and personal, being directed to be sold and converted into money, should not be regarded, upon the principle of equitable conversion, as money, is a question which has not been, to any extent, discussed, and is not, perhaps, absolutely necessary to be now determined. It seems to me, however, that if, as it is claimed, the obvious purport of this instrument was to have all the grantor’s property converted into money with all reasonable dispatch, we may properly treat it as money for the nurpose of construing the trust. “ Courts of equity often regard things agreed or ordered to be done as actually performed. And as the testator has, in effect, directed all his personal to be converted into real property, we may regard the conversion as made, for all the purposes of passing upon the validity of the trust.” (Hawley v. James, 16 Wend., 149.) “Ho principle is better established than this, that those who take the beneficial ownership of property under a will, take it in the character which the testator has thought proper to impart to it. If he gives property to be laid out in land, then it vests as land. If land is devised to be sold and the proceeds are given over, it becomes personalty, and vests and passes as such.” “The principle on which the doctrine of conversion rests is, that whatever in a will or other instrument is directed or agreed to be done is in equity considered as actually performed. (Craig v. Leslie, 3 Wheat., 563; Kane v. Gott, 24 Wend., 660.)” “ If the direction is imperative, requiring a sale at all events, and leaving it discretionary only as to the time and manner of selling, then the sale, when made, has the same effect in respect to the rights of parties in interest as though made immediately. (Leigh & Dalzell, 48; Casamajor v. Strode, cited in note, 19 Ves., 390.)” (Arnold v. Gilbert, 5 Barb., 196, 197.)

It is said that the provisions for turning this property into money are imperfect and indefinite; that there is no provision for collecting the principal or interest of securities, or of dividends on stock, or for reinvestment of money or assignment of securities, or for sales of stock or securities. I think otherwise, and think all these powers are covered by the direction to make sales, and give deeds, and collect debts, and convert into money. It is not necessary that all the details should be severally specified, item by item. They seem to me to be embraced in the powers actually conferred and specifically enumerated. Hence, it seems to me, that, if necessary to resort to this construction, the instrument may be sustained, as a valid trust of personal property, and capable of enforcement as such. ■

I regard, therefore, the instruments in question, not as mere powers of attorney, and revocable by the principal, but as creating valid and irrevocable trusts, or powers in trust.

An important question in regard to them remains to he discussed, which occasionally arises, and is of considerable interest; and that is, whether the plaintiff misunderstood or misapprehended their real character and legal effect, and whether he was, in any degree, encouraged in this belief by the defendant, and whether, for either or both of these reasons, he is entitled to have them revoked or reformed.

There is apt to arise in the mind, I think, a strong disposition to afford the party relief, under such circumstances, because the property was wholly his own, the disposition of it substantially voluntary and gratuitous (whether so, legally speaking, or not), and, in this case, the persons provided for not those who had any absolute claim on his bounty by reason of being his offspring. But, nevertheless, the law must be administered upon certain permanent and established rules; and legal instruments, in their very nature, have a certain solemnity and importance which should forbid their being executed except upon the theory that they are to have efficacy and effect.

The instruments in question are supported by a sufficient legal consideration. They acknowledge the receipt of one dollar as a pecuniary consideration. They recite sufficient reasons and inducements for their execution on the part of the grantor ; and the acceptance of them by the grantor, carries with it an obligation to perform the services therein required, and to appropriate the moneys and property as therein directed.

It is now claimed that there was a misconception, on the part of the plaintiff, as to their legal effect. This fact is substantially found by the justice who decided the cause. It is not claimed, as I understand it, that this idea was ever present to his mind at the time the papers were drawn or executed, or that it influenced his action, in any way whatever, or tliat the papers, as executed, did not fully express his wishes and instructions at the time, or that he would have made any different disposition of his property at the moment, as to the persons who were to participate in it, if he had' known or considered the fact that the provisions were irrevocable. Nor is there, in my opinion, any just reason to believe that the defendant mislead him on this point, or made any effort to impress on his mind the idea that the papers were subject to subsequent revocation or modification by the grantor; or even that the defendant had any reason to know, or believe, that the plaintiff was not fully cognizant of their legal import and effect. Nor is there any ground of mutual mistake, sitlier of fact, or of law, upon which the plaintiff can base any claim to relief. It is not the case of the execution by a party of an instrument whose contents he did not understand, or whose effect, both as to the persons who were to share in his property, and the quantity of interest they were, respectively, to take, he did not fully comprehend. It is simply that the plaintiff’s impressions of the law, at the time of giving his testimony, and at the time of executing these papers, were, that instruments of this character were, in their nature, revocable. These impressions had no practical effect upon his action at the time, and were not a matter of consciousness when the papers were executed; and, I think, cannot, therefore, be said to have entered into the transaction as a part of it. All that can be said about it is that his notions of law were imperfect; and if that were a sufficient ground of relief, who of us could execute a legal instrument. Men must know the law, and we must administer justice, and give effect to legal instruments upon the presumption that they do. The courts have over and over again declared the legal effect of testamentary papers, and pronounced certain dispositions of land, to confer a mere life estate therein, notwithstanding the evidence was morally conclusive that the testator supposed he was conferring a fee simple absolute. And, I think, the decision of the courts would have been the same (assuming the .cases to be unembarrassed by any question of adequate consideration) if the instruments had been deeds and conveyed a present interest in the lands. Parties must be held to have comprehended the legal effect of the instruments they have executed, and if there be no fraud, no misunderstanding or misrepresentation of fact, no mutual mistake between the parties—a mere misconception of the law—as an abstract proposition, not entering as an ingredient into the transaction is not sufficient to confer a power of revocation, or to entitle the party who claims to be aggrieved, to relief. I think the law is very well settled upon this point, and has been very frequently adjudicated in terms that preclude any successful application for relief.

“ Courts do not undertake to relieve parties from their acts and deeds, fairly done, on a full knowledge of the facts, though under a mistake of the law. Every man, at his peril, is to be charged with a knowledge of the law. There is no other principle which is safe and practicable- in the common intercourse of mankind,” (Lyon v. Richmond, 2 Johns., Ch. Rep., 60.)

When parties make just such instruments as they intend to make, and without fraud, surprise, undue influence or mistake of their rights, but labor under error as to the mere legal effect; that alone will not authorize a correction by this court. (Storrs v. Barker, 6 Johns., Ch. Rep., 166.)

“ Courts of equity may grant relief against acts done, and contracts executed under mistake, or in ignorance of material facts / but it is otherwise, I think where a party wishes to avoid his act or deed, on the ground that he was ignorant of the law. All men are presumed to know the law of the land. And although the presumption may often be at variance with the fact, it is impossible, without indulging it, to maintain the order or the institutions of society.” (Bronson, J., in Champlin v. Laytin, 18 Wendell, 412.)

“ Edmonds, J.

There are two reasons why I cannot grant to these plaintiffs the decree they seek, to set aside the whole of this trust deed. First. It was a voluntary conveyance on their part; and they seek to vacate it, not on the ground of a mistake as to matter of fact, but because they were ignorant what -would be its legal effect and operation, and had made a mistake in a point of law. How courts do not undertake to relieve parties from their acts and deeds, fairly done, on a full knowledge of the facts, though under a mistake of the law. (Lyon v. Richmond, 2 John. Ch. R., 51; Clark v. Dutcher, 9 Cowen, 674; Hunt v. Rausmanier, 8 Wheat., 174; S. C., 1 Peters, 1.)” (Dupre v. Thomson, 4 Barb. Rep., 282. See, also, Arthur v. Arthur, 10 Barb. R., 9, 16 ; Gilbert v. Gilbert, 9 Barb., 532; Stoddard v. Hart, 23 N. Y., 556 ; Leavitt v. Palmer, 3 Comst., 38, 39; Story’s Eq. Jur., §§ 111 to 116, 137, and note 138 a.)

■ Was the defendant in such a relation of trust and confidence to the plaintiff as called upon him to take the position of legal adviser and confidential friend, and inform him as to the legal effect of these conveyances ?

■ As a matter of fact, the evidence does not show that he stood in that relation. He was simply a hired clerk, or servant, not having the general custody or charge of his business, but doing such work, and performing such services as he was from time to time called on to perform. The plaintiff took charge of his own business, and gave his instructions to the defendant; and- although he occasionally sought his advice or opinion, it was, as a principal or superior often seeks, the suggestions or aid of his subordinate or clerk. The plaintiff was a lawyer; the defendant (so far as the case shows) was not. The plaintiff was skilled and practiced in the drawing of conveyances ; and in cases where he' had large responsibilities and interests, the defendant, so far as such business was concerned, was a mere draughtsman or copyist, performing useful services, doubtless, but in a subordinate capacity. The defendant was not called upon, I think, to volunteer his suggestions or advice, nor did the plaintiff rely upon him as his confidential adviser. For a long series of years he had relied Upon his own mature and practiced judgment, and there is nothing to show that the defendant knew, or had reason to believe, that the plaintiff had any erroneous conception of the legal effect of these instruments. The plaintiff had drawn, or had procured to be drawn, quite a number of different instruments designed to-be expressive of his intentions as to the ultimate disposition of his property; and the defendant, if he was called upon to form any opinion on the subject, probably concluded that a subject which had . occupied so much of the plaintiff’s thoughts, was pretty fully comprehended by him. Nor, notwithstanding what is said and testified in the case, is it quite certain that the precise and complete legal effect of these conveyances, in all their immediate and remote bearings, was present to the mind of the defendant, or even fully comprehended by him. It was by no means necessary to the validity of these papers that their revocability should have been a subject of contemplation or conversation. And we may well doubt whether, if the defendant had an opinion on the subject, and had expressed it, the plaintiff would have placed any very high value upon it, or rated it as superior to his own. In "short, the plaintiff did not rely upon it, and did not expect any such communication ; knew very well that he understood the subject better than the defendant, and had not installed the defendant into any such position as invited or led him to anticipate legal or confidential communications from him. There was not, in my opinion, any such relation of trust and confidence as demanded a professional opinion or confidential disclosures.

Nor, in my opinion, was there any undue influence or fraud practiced by the defendant upon the plaintiff. A certain degree of influence was incident to the relation in which the parties stood to each other, and was perfectly proper to be exercised; and I do not think the evidence is sufficient to show that it was abused. The defendant obtained no larger share of the plaintiff’s property than others related to him in the same degree of consanguinity; and it was certainly to be expected that, in any disposition of his property which the plaintiff might make, the defendant would naturally be permitted to share largely, if not exclusively, in its management and control. It would have been strange, if the plaintiff communicated with him on that subject, that the defendant should not have expressed his mind freely to him, and even sought a private interview to have had fuller opportunity for the unrestrained expression of his sentiments. I do not discover, that he took undue advantage of his position, or that he misrepresented facts to the prejudice of the plaintiff or Others. I do not see any sufficient evidence that his influence over the plaintiff was such ás to enable him to substitute his own will Or wishes for those of the plaintiff, or to override those of the latter, or that any such practical result was in fact produced.

I do not propose to go into any minute' reference to the testimony on that subject. The casé was heard at Special Term by a learned justice of this court, who himself heard the witnesses testify, and who was well qualified to give the proper weight to their testimony; and he has hot only found against the existence of any such undue influence or fraud as is alleged, but has pronounced a very learned and able opinion oh this whole case, which seems to make it almost a work of supererogation to write upon it further, and almost inquires an apology for making the attempt to do so.

But the subject was so learnedly discussed in the arguments at General Term, and has not been viewed in precisely the same light by all of us who have to adjudicate upon the same, and the subject is withal so interesting in itself, and involves so large ah amount of property, that I have, though with some hesitation, ventured upon its discussion.

I do not deem it necessary to discuss the exceptions to evidence. I think, in regard to them, that the rulings of the court below were either right or not prejudicial to the plaintiff to such a degree, or in' any such sense, as to demand a new trial.

In reaching á conclusion in accordance with the opinion of the court below, and unfavorable to the relief which the" plaintiff asks, I feel the less reluctance, because, if the affairs of the trust are properly and diligently administered, I see no reason to doubt that they may be so far advanced, and the property converted into money within a reasonable time, as to give to the plaintiff, and to place within his personal disposal, the avails of much the greater portion of his estate, and thus to enable him, independently of this trust, to dispose of the Same in entire accordance with his own wishes. This practical result is, I think, attainable, and, if attained, would probably be a more sensible and beneficial disposition of this controversy than to prosecute it through the courts for the remainder of the plaintiff’s life.

I am of opinion that the judgment of the Special Term should be affirmed, with costs.

Parker, J., concurred.