Hayden v. Sugden

48 Misc. 108, 96 N.Y.S. 681
CourtNew York Supreme Court
DecidedAugust 15, 1905
StatusPublished
Cited by6 cases

This text of 48 Misc. 108 (Hayden v. Sugden) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayden v. Sugden, 48 Misc. 108, 96 N.Y.S. 681 (N.Y. Super. Ct. 1905).

Opinion

Clarke, J.

These actions are brought to partition certain premises, in this State. It is conceded that the properties should be divided into lots and sold. The main question presented is the construction of the will of Jessie Sugden. Both complaints pray that the exact interests of the husband and children of the testatrix and the trustees named in the will may be judicially settled and determined. The will, dated December 29, 1897, was drawn and executed in England, where the testatrix died on October 25, 1901, seized of undivided interests in the premises described in the complaints. She left her surviving her husband, two infant daughters and an infant son, and they, as well as the trustees, reside in England. The will was probated in London and letters testamentary issued to the trustees, to whom ancillary letters testamentary were issued by the surrogate of New York county. The will is apparently drawn for the purpose of creating trusts of real and personal property, which may be permissible under the laws of Great Britain, but which in part are forbidden by the statutes of this State. The will, as far as it affects the interests of Jessie Sugden in the premises in question, must be construed as a will of real property. The will does not make an equitable conversion of the premises. After bequeathing several small legacies the will provides: I devise and bequeath all my real and personal estate whatsoever and wheresoever not hereby otherwise disposed of unto my trustees upon trust [111]*111that my trustees shall either retain the same in such state of investment as it may he at my death or shall sell, call in and convert into money the same, or such part thereof as shall not consist of money, and shall with and out of the moneys produced by any such sale, calling in or conversion and out of my ready money pay my funeral and testamentary expenses and debts and the said legacy, and shall invest the residue thereof as hereinafter authorized, and shall stand possessed of the said residuary trust property and moneys and the investments for the time being representing the same (hereinafter called the residuary trust fund ’)” in trust as by the will further provided. The trustees are by this provision to stand possessed of the residuary trust property. This is the same as the residuary trust fund and includes not only the personalty, remaining after payment of the debts and legacy, but also all the real estate of which testatrix died seized. Moreover, by the ninth paragraph of the will the testatrix declares: “ My trustees may postpone the sale and conversion of my real and personal estate, or any part thereof, for so long as they shall think fit, and that the rents, profits and income to accrue from and after my decease of and from such part of my estate as shall for the time being remain unsold and unconverted shall be paid and applied to the person or persons and in the manner to whom and in which the income of the moneys produced by such sale and conversion would for the time being be payable or applicable under this' my will if such sale and conversion had been actually made.” By the tenth clause the trustees are given power to appoint agents in the United States of America for the purpose, among others, “of cultivating any of my property which may be abroad.” The eleventh clause provides: “Any moneys to be invested hereunder may be invested in or upon any of ” the personal properties specified. The intention of the testatrix was not to impress a new character upon her real estate. When executors or trustees are merely authorized to change real property into personal property, as they may think fit and their judgment is to be formed from conditions existing after the death of the testatrix, the property will not be deemed to be equitably converted. Harris [112]*112v. Clark, 7 N. Y. 242. Mr. Justice Patterson has recently summarized the rules of law on the subject of equitable conversion by wills in Phoenix v. Trustees of Columbia College, 87 App. Div. 438, which was affirmed on the opinion below in 179 N. Y. 592, as follows: “ The inquiry is as to the intention of the testator. It is the rule of law in this State that such intention must appear plainly, distinctly and unequivocally. Scholle v. Scholle, 113 N. Y. 261; Clift v. Moses, 116 id. 144. An intention to convert may be manifested in various ways: First, by a positive direction to the executors or trustees to make it * * * second, the intention may be ascertained from the necessity of a sale, in order to carry out the general scheme of a testator * * * and third, the property may be deemed to be equitably converted, when the purpose of the testator would fail without such conversion.” In the will of Jessie Sugden there is no positive direction to sell. A sale of the American property does not appear to be necessary to carry out the scheme of her will, which provides for the payment of interest and income. It does not appear that this property must be sold to pay debts, as in Matter of Gantert, 136 N. Y. 106, or to pay legacies, as in Fraser v. Trustees of U. P. Church, 124 N. Y. 479, in order to effectuate the intent of the testator. In this case the trustees are given a discretionary power of sale of the properties devised to them to aid in the convenient administration of trusts. But the income from the real estate may as readily be applied and final division may be made of the realty. In Matter of Tatum, 169 N. Y. 514, 518, Judge Gray says: “ Unless the purpose of the testator will fail without a conversion, equity will not presume it. 'There should be an implication of a direction to convert, so unequivocal and so strong as to leave no substantial doubt in the mind. Hobson v. Hale, 95 N. Y. 588; Scholle v. Scholle, 113 id. 261. Indeed, conversion, to be decreed, must be so necessary, as that, without it, the provisions of the will would be rendered unreasonable and incapable of a just and an effective operation.”' The material provisions of the will declaring the trust may be briefly stated, and, for convenient reference, divided into para[113]*113graphs as follows: 1. In trust to pay the income to my husband during his life until he shall marry again (but subject to the power of advancement hereinafter given to my trustees) and from and after his decease or second marriage. 2. In trust for all my children who shall attain the age of twenty-five years or marry under that age in equal shares. In case any child of mine shall die in my lifetime the children of any such child to take the share which his, her or their parent would have taken in the residuary trust fund if such parent had survived me and attained the age of twenty-five years. If there shall be no child or grandchildren of mine, then, 3. In trust for my husband absolutely if he shall survive me. But if he shall predecease me, 4. In trust for my sister and my brother in equal shares. 5. Provided always and I hereby declare that my trustees shall retain the share of each of my daughters in the residuary trust fund upon trust to pay the interest thereof to such daughter during her life, and.so that if and while she shall be under coverture the same shall be for her sole and separate use and she shall not have power to dispose of the same in the way of anticipation, but with power, nevertheless, for such daughter to appoint by deed or will that after her decease the whole or any part of such income shall be paid to any husband who may survive her during his life or for any less period. 6.

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Bluebook (online)
48 Misc. 108, 96 N.Y.S. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayden-v-sugden-nysupct-1905.