Gott v. Cook

7 Paige Ch. 521

• Court: New York Court of Chancery
• Decided: May 7, 1839
• Status: Published

Opinion

The Chancellor.

It is conceded by the counsel for all parties in this case, that the executors, as trustees, took no estate or interest whatever in the house and lot on Pearl-street or in the .Middlefield farm ; but that the whole beneficial interests devised, so far as the devise was legal, passed directly to the ecstuis que trust, as legal estates, under the provisions of the forty-seventh section of the article of the revised statutes relative to uses and trusts. (1 R. S. 727.) It is only necessary, therefore, to examine the provisions of this will in relation to the other property of the testator; all of which was intended to be devised and bequeathed to the executors, in trust, and to be converted into personal estate for the purposes of the will. And as this court, upon the principle of equitable conversion, considers a direction to convert one species of property into another, for purposes which are valid in law, as tantamount to an actual conversion thereof, the whole trust fund in this case must be considered as personal estate for the purpose of ascertaining whether the several bequests of future or contingent interests therein are valid ; whether the title to the property is vested in the executors, as special trustees, or it belongs to the several legatees to whom the beneficial interests therein are bequeathed. (Grieveson v. Kusopp,2 Keen's Rep. 653. Du Hourmelin v. Sheldon, 1 Beavan’s Rep. 79.)

The revised statutes have not attempted to define the objects for which express trusts of personal estate may be created ; as they have done in relation to trusts of real estate. Such trusts therefore may be created for any purposes which arc not illegal. Indeed it would be very difficult, if not impossible, in many cases, to create and preserve future and contingent interests in personal property without the intervention-of a trustee ; although trustees would not be necessary, under the provisions of the revised statutes, to create and preserve such future and contingent interests in lands or other real estate. In all other respects, however, except as to the mere vesting of the legal title to the property in the trustee, instead of the cestui que trust, the conveyance or bequest of personal estate must be governed by the same rules which are applicable to a grant or devise of a similar interest in lands or real property. Independent of the common law principle of analogy between estates or interests in real and personal property, the statute creates such an analogy, by restricting the power of suspending the absolute ownership or the right of alienation, within the same limits; by confining the power of accumulating the income of personal estate, and the rents and profits of real estate,^ to the same objects and within the same bounds; and finally by declaring, in general terms, that in all other respects limitations of future or contingent interests in personal property shall be subject to the rules prescribed by the revised statutes in relation to future interests in lands. (1 R. S. 761, tit. 4.) It becomes necessary, therefore, to examine the several estates or future interests in this personal fund, and in the income thereof, which are attempted to be created or limited by this will; for the purpose of seeing whether all or any of them are void by these statutory regulations.

The annuities, to the sister in law and the mother of the testator, are not made payable out of the income of the estate merely, but are a charge upon the principal of the fund. They may therefore be provided for at once, by the purchase of annuities with a portion of the fund. And as the annuities in the present case are not inalienable under the sixty-third section of the article of the revised statutes relative to uses and trusts, which section is confined to beneficial interests in the rents and profits or income of the property, they do not suspend the absolute ownership as to any part of the fund. The provision for the support of the two nieces, and the additional allowance to the mother of the testator while she lives with them, do not appear to conflict with any rule of the revised siatutes; for if the absolute ownership of the property is suspended thereby, it is necessarily limited to two lives in being at the death of the testator ; to wit, the lives of the two nieces.

Upon the argument of this case I was under the impression that there was a part of the income of the estate, between the death of the testator and the coming of age or marriage of the nieces respectively, which was not'disposed of by the will. On examining the third clause in connection with the eighth, however, I am satisfied'it was the intention' of the testator that one half of the income should be accumulated, by the executors, for the benefit of each niece,to be paid' to her on her marriage or on her arriving at the age of twenty. The eighth clause appears to have been intended to direct the accumulated income of the fund to be paid to each, at the time prescribed, and that one half of the future income should then be paid over to each during her life. (See Barber v. Barber, 3 Myln. & Craig, 688.) These accumulations being for the benefit of infants who were in esse at the death of the testator, and being limited so that they must terminate during the minority of the infants respectively, are expressly authorized by the revised statutes, and arc valid. (1 R. S. 729, § 55, sub. 4. Idem, 773, § 3.) The devise or bequest of one half of the income to each niece for life, after the trust of accumulation ceases, is a future interest in personal property within the statutory definition of future estates. (1 R. S. 723, § 10; 725, § 36.) The limitation of such interests must, therefore, be subject to the statutory rules in relation to future estates in lands. One of those rules is that the persons beneficially interested in the trust to receive such income cannot assign or in any manner dispose of such interests during their lives. (1 R. S. 730, § 03.) The absolute ownership of the fund or estate-out of which this income is to arise is therefore suspended, by the limitation of such interests, during the lives of the two nieces. But as those two lives were in being at the death of the testator, this suspense of the absolute ownership, or the power of alienating the principal fund; docs not exceed the limit allowed by law.

The trust in this case is to pay over the income to the nieces respectively, as the same shall be received by the executors, and is not, in terms, to apply it to their use ; which last is the language used in the 3d subdivision of the 55th section of the article relative to uses and trusts. And if that section of the revised statutes applies to trusts of personal property, so that no trust of personal estate is valid except such as are in conformity to the provisions thereof, the question arises whether su,ch a trust as this is void. Upon that question there were differences of opinion expressed by some of the judges, in the court for the correction of errors, in the cases of Lorillard’s and of James’ wills. For the purpose of seeing whether such a trust comes within the principle of the 55th section, it is necessary to ascertain the intention of the legislature in framing the third subdivision of that section, as it was finally amended. The object unquestionably was to authorize a trust in the rents and profits of real estate for the benefit of an improvident beneficiary, so as to ensure him a support notwithstanding such improvidence; or a trust which would protect an unfortunate feme covert against the improvidence of her husband, so as to place what was intended for her beyond his reach, and beyond the reach of his creditors. And if this can be as effectually done under such a provision as is contained in this will as it could be, consistently with other provisions of the statute, if the trust was framed in the very words of the law, courts should not give to the statute a construction which would render it necessary for the trustee to purchase every loaf of bread, and every paper of pins, which may be required for the use of the cestuis que trust, instead of giving them the money, after the same has been received from the rents and profits of the trust estate, to enable them to purchase for themselves. Even as this section originally stood, when the rents and profits were to be applied only to the education and support of the cestui que trust, I have no doubt that the trastee would have been authorized to pay over the rents and profits to an adult cestui que trust, for that purpose, when received. The legislature, however, soon discovered that a cestui que trust might have other uses for money besides a bare education and maintenance ; and that if the trustee could not give it to him, to be so applied, when it was more than sufficient for maintenance and education, the trust as to the surplus must fail; the trustee having no right to keep (the surplus himself, and the legislature having prohibited trusts of accumulation except in cases of minority. The statute, therefore, was amended so as to authorize the rents and profits to be applied generally to the me of the cestui que trust. The great object of the statute is attained if the property, by means of the trust, is placed beyond the reach of those who might squander the rents and profits in anticipation, or might allow the property to be taken for the payment of previous debts; and this is effectually done by the section of the revised statutes which renders the interest of the cestui que trust inalienable. The cestui que trust, if he is in a situation to know and provide for his own wants with ordinary discretion, must certainly have the power to direct how the money shall be applied when it has been actually received by the trustee ; for it never could be tolerated, in such a case, that the trustee should have the power to direct what food the cestui que trust should eat, what clothes he should wear, what church he should attend and contribute to the support of, or to what other specific purpose his surplus income should be applied. In case the trustee should attempt, without any justifiable cause, to exercise such a control over the income of the trust fund, after it had been received so as to become the absolute property of the person for whose use it was to be applied, it would be the duty of this court to remove such trustee, and appoint another who better understood his duty. On the other hand it would equally be a breach of his duty to place the income, after it was received, in the hands of a lunatic or a drunkard, who he had reason to suppose would waste it without applying it to any beneficial use; and so it would be if he purchased articles of food and clothing or other property himself, and placed them in the hands of such a person, when he had reason to believe they would be wasted, instead of being used for the benefit of such cestui que trust or his family. In every such trust, whether the trustee is directed to pay over the rents and profits, as received, in money, or in necessaries to be purchased by himself, a certain degree of discretionary power must be vested in the trustee. And if that discretion is properly exercised by him, the rents and profits or income, received from time to time, will be applied to the use of the cestui que trust, whether the same are delivered to him in money or in necessaries for himself and family. Where the trustee acts in good faith, and for the apparent benefit of the cestui que trust, in refusing to place the rents and profits or income in his hands to be wasted, the court of chancery will protect him in the honest discharge of his duty, by refusing its aid to the improvident cestui que trust. And if the income is paid over to the cestui que trust who is under no legal disability to receive it, after it has actually accrued and not by way of anticipation merely, even where the trust is in the words of the statute, he can never after-wards call upon the trustee to account for the money on the ground that it has been misapplied. The statute having authorized a trust to receive the vents and profits and apply them to the use of the cestui que trust, if the person creating the trust thinks proper to direct the manner of the application, as in this case, by paying them over to the objects of his bounty to be used in such way as they think proper notwithstanding their coverture, I cannot see why the direction is not within the letter as well as within the intent and meaning of the statutory provision on this subject. I therefore concur in opinion with those who hold that a valid trust may be created, to receive the rents and profits of real estate, and to apply them to the use of the cestui que trust by paying the same over to him in money, after they have accrued and been received by the trustee.

The interest in the income of the property in this case, after the death of either of the nieces without issue, is limited to the survivor for life, by the ninth clause of the will. By this provision cross remainders, in the moieties of the income before given to them respectively, are limited upon the previous estate or interests therein. The statute allows two successive estates for life, and this provision is therefore valid. But the provision in the same clause, giving to the children of the niece who dies first an interest in the income of their mother’s share, during the minoi’ity of the youngest child, and giving to the widowed husband a conditional support out of such income, appears to have the effect of suspending the absolute ownership of the property for more than two lives in being at the death of the testator; as the bequest is not so limited that the interests in this part of the income must necessarily terminate during the life of the surviving niece; Even if the provision in the tenth clause could be considered as limiting the continuance of this interest to the time of the death of the surviving niece, in the event of her leaving issue, that would not obviate the objection; for the surviving niece may die without issue, and in that event the interest attempted to be created by the ninth clause, in favor of the husband and children of the one who died first, is so limited as to continue until the termination of the minority of the youngest of those children. And the decision of the court for the correction of errors in Hawley v. James, (16 Wend. Rep. 61,) settles the construction of the fifteenth section of the article of the revised statutes relative to the creation and division of estates to be, that an estate is void in its creation if it is so limited that it can by any possibility continue beyond the two lives in being at the creation of the estate. This provision of the will is therefore void. And if the-event contemplated by the testator in that part of the will should happen, the interest or income of that half of the trust fund will belong to the heirs at law and next of kin of the testator, during the life of the surviving niece, as an interest in the property not legally disposed of by the will.

By the tenth clause of the will the absolute ownership of the fund, upon the death of both nieces leaving issue, is given directly to their children; one moiety to be divided among the children of each. This is an estate in fee, limited upon the termination of two specified lives in being at the death of the testator; and cannot by any possibility suspend the power of alienation, or the absolute ownership of the estate, beyond the limits allowed by the revised statutes. It is therefore valid. And in the event contemplated by the testator in this clause of the will, the executors must pay over to the children of the two nieces the whole principal of the fund, after providing for the annuity to Jennet Cook, the widow of the testator’s brother, if she is then living.

The eleventh clause provides for the contingency of the death of one of the nieces, leaving issue, after the death of the other without issue ; and also for the final distribution of the principal of the trust fund after the death of the surviving niece, without issue, subsequent to the happening of the event contemplated by the testator in the latter branch of the ninth clause of the will. If the absolute ownership and power of alienating the trust fund was, by this eleventh clause of the will, to vest in the children of the niece who had left issue, immediately upon the termination of the life estate of the surviving niece, as is provided by the tenth clause in the event of both nieces leaving issue, the limitation would be valid; for the reasons stated in relation to the interest created in and by such tenth clause. But inasmuch as the absolute ownership of the fund, in either of the events contemplated by the eleventh clause, will have been suspended for the lives of the two nieces, it is evident that the suspense of the absolute ownership of the property, and of the power of alienation, cannot be continued after that time by any limitation or condition whatever. For the reasons stated in relation to a similar provision in the ninth clause of the will, the trust to receive the rents and profits during the minority of the youngest child, and to pay over the shares of the adults, and to accumulate the shares of the infants during their respective minorities, is the limitation of a future estate or interest in this fund; which limitation is void in its creation. (1 R. S. 723, § 14.) A trust to accumulate rents and profits for the benefit of an infant who was not in esse at the creation of the trust, in order to be valid, must be so limited that the accumulation will commence and terminate within the compass of some two ascertained lives in being at the creation of the trust.

It is insisted however, by the counsel for the executors and for the infant defendants, that if the interest created in the income of the estate during the minority of the youngest child, by this clause of the will, is void, the ultimate remainder in fee to the ceildren is thereby accelerated ; so as to give them the absolute ownership and the right to the possession of the fund immediately upon the death of the surviving niece. This case certainly is not provided for by the 17th section of the article relative to the creation and division of estates. (1 R. S. 723.) That section only provided for the acceleration of a remainder which is limited upon more than two successive estates for life to persons in being at the creation of the estate. Here the ultimate remainder, in the events contemplated in this clause of the will, is neither limited upon successive estates for life, nor upon the termination of the minority of a person in esse at the time of the creation of the estate. The trust term in the income of the estate, after the death of both nieces and during the minority of the youngest child, being void, the income during that period cannot be given to the children, as the persons presumptively entitled to the next eventual estate, under the provisions of the fortieth section of the last mentioned article of the revised statutes. (1 R. S. 726.) That section gives the intermediate rents and profits or income to the person presumptively entitled to the next eventual estate, where the limitation of the future estate suspends the absolute ownership of the property or the power of alienation. Here the ultimate remainder in fee, or the direction to distribute the-whole of the principal of the fund, among the children of the niece who left issue, when the youngest of her children arrives at the age prescribed, will be a vested interest in all the children at the death of the surviving niece ; so that the power of alienation or the absolute ownership will be no longer suspended ; the trust term, and the direction to accumulate during the minority of the youngest child, being void in its creation. It is true, the children of the niece who died leaving issue will not be entitled to their ultimate remainders, in possession, until the end of the term attempted to be given to the executors during the minority of - such youngest child ; as the heirs and next of kin of the testator will be entitled to the income in the mean time, as an interest in the property not effectually disposed of by the will.

(a) But such children, or their legal guardians, by joining with the heirs and next of kin, can at once convey an absolute ownership or fee in the whole fund the moment their remainder vests in interest. The power of alienation of real property, or the absolute ownership of personal property, which is the same thing in substance, can only be suspended while there are persons in being and ascertained, by whom an absolute estate or interest in fee in possession can be immediately conveyed. (1 R. S. 723, § 14.) I conclude, therefore, that although the trust term to receive the rents and profits for the benefit of the children during their minority is void, the ultimate remainder in fee to the children, which is limited on that term, is not accelerated, neither is it invalid. This ultimate remainder in fee, in the events contemplated in the eleventh clause of the will, is expressly authorized by the twenty-fourth section of the article of the revised statutes relative to the creation and division of estates, so often referred to. (1 R. S. 724.) It is in substance a contingent remainder limited upon a term of years, within the meaning of the twentieth section. But it is valid according to that section, as it is so limited that it must vest in interest, if ever, on the determination of two lives in being at the creation of such remainder ; to wit, the lives of the two nieces of the testator. And as it does not suspend the power of alienation or the absolute ownership of the property, as I have before shown, it does not come in conflict with the provisions of the fifteenth section; although the estate does not vest in possession as soon as it vests in interest.

A decree must be entered declaring the construction of the will accordingly, and containing the proper directions to the executors in the several events contemplated by the will. It must also be referred to the injunction or taxing master of the third circuit to state the accounts of the executors; and to ascertain what is due to Mrs. Kane, as well for the accumulation of her half of the income previous to her marriage, as for the receipts thereof afterwards ; and also to ascertain the accumulated fund, arising from the half of the income of the fund which is to be accumulated for the benefit of the infant defendant Jennet M. Cook until she marries or arrives at the age of twenty years. The decree must also contain a provision for a periodical passing of the accounts of the executors, during the continuance of the trust, before the same master if in office, and if not, then by his successor as injunction or taxing master. The costs of all parties must be paid out of the capital of the estate. And a reasonable counsel fee, to the guardian ad litem and counsel of Jennet M. Cook, to be certified by the master, may be paid to him by the executors out of the accumulated fund belonging to her. The infant children of Mrs. Kane, having no vested interest in the estate, there is nothing out of which any counsel fees for them can be allowed. And the court is not authorized to charge a fund which may eventually all belong to others, with any thing more than the taxable costs of their guardians ad litem.

Where there is an interest in a fund arising from the proceeds of the sales of both real and personal estate, which interest is not legally and effectnally disposed of by the will, so much of that interest as arises from the proceeds of the real estate belongs to the heir at law, and so much as arises from the personalty belongs to the residuary legatees or next of kin. (Eyre v. Marsden, 2 Keen's Rep. 564.)