In re Turner

10 Barb. 552

Opinion

Hand, J.

The petition makes out a strong case, and if the court has power to grant the relief, I have no doubt to do so would be advantageous to all that are now interested in this trust. The state of the property and the situation of his son and of his son’s family have, it is to be feared, in a great measure frustrated the kind intentions and the liberality of this venerable and excellent parent.

It is clear from the petition that the income would be greatly increased by a sale, and, in the language of an eminent chancellor in a similar case, “ I wish very well to the application if I can find a principle upon which it can rest.” But, notwithstanding some early decisions, it seems clear that this property can not be sold. In the first place, it would be against the provisions of the grant. The power to sell the real estate of an infant depends upon statute. (Rogers v. Dill, 6 Hill, 415, and the cases there cited. 2 R. S. 194, 5, §§ 170,175,176. Garmstone v. Gaunt, 9 Lond. Jur. 78.)

(a) And the statute declares “ no real estate or term for years shall be sold, leased or disposed of in any manner against the provisions of any last will, or of any conveyance by which such estate or term was devised or granted to such infant.” (2 R. S. 195, § 176.) In one of the cases cited hy Nelson, C. J. in Rogers v. Dill, the counsel finally admitted there was no relief except by an application to parliament. (Russell v. Russell, 1 Molloy, 527.) Now the power is given by statute, with the above exception. This restriction was intended to carry out the will of the donor, which in some cases of personal estate has been strangely disregarded, (Barton v. Grant, 1 Vern. 255. In the matter of England, 1. Russ & My. 499. Hill on Trustees, 398,) and to an extent to jeopard the whole fund, even where it was given over after a life estate. (In the matter of Bostwick, 4 John. Ch. Rep. 100.)

•As the donor in this case joins in the petition, this can hardly be said to be contrary to his present wishes; and it might therefore be insisted that the case is not within the spirit, though within the letter of the statute. Particularly as the property is to be reconveyed to him, if Peter dies first, without issue; and if Peter survives him and then dies without issue, it is to be conveyed in the manner the donor shall direct and appoint by his will. These events are now quite improbable ; but if it were otherwise, not having reserved the power to alter the disposition, his will, as expressed in the deed creating the trust, must be our guide.

But another insuperable objection renders it unnecessary to inquire into the nature of Duncan Turner’s rights' during the life of Peter. (See Jackson v. Robins, 16 John. 537; Jackson v. Edwards, 22 Wend. 498; S. C. 7 Paige, 386; Hoy v. Master, 6 Sim. 568; Bradford v. Street, 16 Ves. 135 ; Reid v. Shergold, 10 Id. 370 ; Bradley v. Westcott, 13 Id. 445; 1 R. S. 733 to 735.) If he were to confirm a sale by publishing his will making an appointment agreeable to that- sale, still, that from its very nature is revocable and ambulatory. (4 Kent's Com. 336.)

In. the principal case there may be other children hereafter born, who may, in case of the death of the two now living, be entitled to a conveyance of the whole estate on the decease of Peter Turner. (See remarks of Bronson, J. in Champlin v. Haight, 7 Hill, 246.) But were there no restraint imposed by the statute, there could be no sale, as the person finally, entitled to the estate can not yet be ascertained. Were it certain that Peter would leave issue, him surviving, it seems that, even in cases of personal estate, the difficulty would not be removed. Borne of the old cases were decided the other way. Indeed, in one case, the will gave the property first for life, and then to the use of the children of a daughter, “ then born or thereafter to be born,” as tenants in common, and their respective heirs forever, with a direction for an accumulation; and the vice chancellor said, “ the children born and to be born have a common interest, and therefore the increase of the fund is in this case applicable to maintenance.” (Haley v. Bannister, 4 Madd. 280.) He must have considered it sufficient that the estate belonged to a class, whether all were yet in esse or not. But I understand the rule now to be, both here and in England, that where there is any valid limitation over, however contingent, maintenance can not be allowed unless provided for in the grant or will. Where the fund is given absolutely to a class of infants, with right of survivorship—that is, where all have an equal chance of surviving, and a present interest—an allowance may be made. If those not in esse may1 take; as if to children born and hereafter to be born; or to children, and in case of the death of any before 21, to the issue of the latter; or if limited over to strangers, maintenance will be denied. (Errat v. Barlow, 14 Ves. 202. In re Davison, 6 Paige, 136. In re Ryder, 11 Id. 185. Errington v. Chapman, 12 Ves. 20. Kebble, Ex parte, 11 Id. 604. Fairman v. Green, 10 Id. 45. Turner v. Turner, 4 Sim. 430.) If the gift be over to strangers, who consent, that difficulty will be obviated. In these cases of maintenance to which I have referred, there was no attempt to sell real estate, but the principle applies with full force. The declaration that the object is to insure a reputable support and maintenance to Peter C. Turner, &c. can not affect or alter the other plain provisions of the grant.

Motion denied.

This case (Garmstone v. Gaunt) is also reported in 1 Collyer’s Rep. 577.