In re Fero

9 How. Pr. 85

• Court: New York Supreme Court
• Decided: August 15, 1853
• Status: Published

Opinion

Wright, Justice.

If the necessity for this investment was rendered fully apparent by the facts disclosed in the petition (which it is not) I should doubt the power of the court to grant the order. The cestui que trust has parted with all interest in the capital of the trust estate. The trust is two-fold, to pay to her the income annually during her life, and at her decease to release or convey the estate to her heirs at law. The cestui que trust cannot by any act of her own defeat the trust. _ Having reserved no interest in the capital of the trust estate, the effect of granting the petition would be to diminish that capital, and so tend to destroy the trust. If the capital may be invaded to the extent asked for by the petition, it may to its full limit, and •thus utterly defeat the trust.

The order asked for is denied. A rule to that effect may be entered with the clerk of the county of Albany, as of the August special term- No costs of motion to be allowed.