Waite, J.
The plaintiff’s suit is founded upon the claim, that Mrs. Steenbergen, under the will of her father, took such an interest in the property given to her brothers, in trust for her and her children, that she has power to bind the same, by her contracts. If this claim can be sustained, then undoubtedly the plaintiff is entitled to the relief he seeks. For we freely admit, that property may be so given in trust, for a married woman, that she may use and controul it, as a feme sole may her own property, and may bind it by her contracts. And if her trustees refuse a compliance with her directions, in relation to the disposition of the trust property, their obedience may be enforced, by a court of chancery. Donalds v. Plumb, 8 Conn. R. 447. Imlay v. Huntington, 20 Conn. R. 147.
But, at the same time, we think it in the power of a parent to place property in the hands of trustees for the benefit of a son and his wife and children, with full power in them to manage and apply it at their discretion, without any power whatever in the son to interfere in that management, or in the disposition of it, until it has been actually paid over to him, by the trustees. In such case, a court of chancery will never interfere with the exercise of that discretion, until it is shewn, that there has been some abuse of the authority given to the trustees.
In many cases, the exercise of such power may be highly beneficial and necessary. A man may have a son, so fallen into vicious habits, as to be utterly unfit for the management of any property. A gift to him might be worse than useless. That son may have a wife and children, whom he entirely neglects. The father be both able and willing to make [9]*9ample provision for them, and save them from being a public burden. But he can do nothing through the instrumentality of his son. But may he not through the intervention of trustees, in whom he can confide, and place property in their hands for the benefit of his son and family, beyond his controul?
Again, a man may have a daughter married to a man, entirely reckless in the management of property. Whatever funds are placed within his reach will soon be scattered and gone, and do her little or no good. She may be so completely under his influence, that she would not dare to set up any will of her own, in opposition to his; and any gift to her would, in effect, be one to him, and, practically, of no use to her, or her children. The father may be perfectly satisfied that any amount of property whatever can be of no benefit to them, unless placed entirely beyond the controul of both. But his object may be accomplished through the medium of trustees, clothed with the custody and the entire disposition of the property, for the benefit of his daughter and her children. It may be unpleasant to them to be deprived of the privilege of spending the property, so given, as they please; but, at the same time, the father had the power of disposing of his property as he thought proper, and they must be content to take it in the manner he has prescribed, or not at all.
It is true, this power may, sometimes, be unnecessarily and capriciously exercised, but is not more likely to be abused than many others, appertaining to the ownership of property. There is much more danger to be apprehended from the power which a father has, of cutting a daughter off from any portion of his estate, or of giving her a mere nominal legacy, than there is, that he will give her the beneficial use of a large share of his estate, and at the same time, unnecessarily deprive her of the controul and disposition of the property. In the latter case, he will be likely to select for trustees, men, to whom her rights may be safely confided. But however this may be, the power, in both respects, exists, and cannot well be controuled, without placing undue restraints upon the alienation of property.
The enquiry, then, in the present case, comes to this; was the property given by the testator to his two sons in [10]*10trust, for the benefit of his daughter and her children, so given as to be subject to her controul, and liable to be bound by her contracts; or were the trustees clothed not only with the custody of the property, but the application of it, according to their discretion, for the purpose specified.
If the former is the fair construction of the will, then the trustees are bound to apply it according to her directions, in the fulfillment of her contracts. If the latter is the true construction, then they are neither to be governed by her orders, nor by any interference of a court of chancery with the exercise of their discretion, until it is shown, that there has been some abuse of their authority.
What are the provisions of the will, in this case? The testator, after giving several legacies, directs the balance of his property to be divided equally among his children, subject to the following provisions and conditions. Those relating to his daughter’s share are briefly these. All the property given to her is for the exclusive use of her and her children, free from any debts or controul of her husband; and to secure the same to their unimpaired enjoyment, he gives the same in trust to his sons, George P. Beirne and Oliver Beirne, with full authority to apply the property as to them shall seem best, for their exclusive benefit, during the life of the daughter, and after her death, to divide the same equally among her children.
Now, in the opinion of a majority of this court, the trustees, by the terms of the will, are clothed not only with the legal title to the property, but the power to apply it, as to them shall seem best, or in other words, according to their discretion. They must indeed apply it for the benefit of the daughter and her children; and were they to appropriate it to any other use, a court of chancery might then interfere, because they would then transcend their authority. But so long as they continue to use the funds for the benefit of their sister and her children, it is for them to apply them according to their judgment. Suppose she should be of opinion, that a particular mode of investment would be best for her and her family; and the trustees should be of an entirely different opinion, and therefore refuse a compliance with her request. Whose judgment is to govern?—hers or theirs? [11]*11This question is to be determined, not by enquiring whose judgment is the best,—but which has the power of deciding.
It seems to us, that the language of the will leaves no possible doubt upon the subject. They have full authority to apply the property, as to them shall seem best, and not as may seem best to her. Suppose the trustees had carefully examined the facts in relation to the purchase of the furniture, and had come to the conclusion, perfectly satisfactory to their minds, that such purchase was not best for their sister and her children, and therefore should refuse their approbation of the purchase, can a court of equity review their decision, and reverse it, if they find it to be wrong? We think the court has no such power.
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Waite, J.
The plaintiff’s suit is founded upon the claim, that Mrs. Steenbergen, under the will of her father, took such an interest in the property given to her brothers, in trust for her and her children, that she has power to bind the same, by her contracts. If this claim can be sustained, then undoubtedly the plaintiff is entitled to the relief he seeks. For we freely admit, that property may be so given in trust, for a married woman, that she may use and controul it, as a feme sole may her own property, and may bind it by her contracts. And if her trustees refuse a compliance with her directions, in relation to the disposition of the trust property, their obedience may be enforced, by a court of chancery. Donalds v. Plumb, 8 Conn. R. 447. Imlay v. Huntington, 20 Conn. R. 147.
But, at the same time, we think it in the power of a parent to place property in the hands of trustees for the benefit of a son and his wife and children, with full power in them to manage and apply it at their discretion, without any power whatever in the son to interfere in that management, or in the disposition of it, until it has been actually paid over to him, by the trustees. In such case, a court of chancery will never interfere with the exercise of that discretion, until it is shewn, that there has been some abuse of the authority given to the trustees.
In many cases, the exercise of such power may be highly beneficial and necessary. A man may have a son, so fallen into vicious habits, as to be utterly unfit for the management of any property. A gift to him might be worse than useless. That son may have a wife and children, whom he entirely neglects. The father be both able and willing to make [9]*9ample provision for them, and save them from being a public burden. But he can do nothing through the instrumentality of his son. But may he not through the intervention of trustees, in whom he can confide, and place property in their hands for the benefit of his son and family, beyond his controul?
Again, a man may have a daughter married to a man, entirely reckless in the management of property. Whatever funds are placed within his reach will soon be scattered and gone, and do her little or no good. She may be so completely under his influence, that she would not dare to set up any will of her own, in opposition to his; and any gift to her would, in effect, be one to him, and, practically, of no use to her, or her children. The father may be perfectly satisfied that any amount of property whatever can be of no benefit to them, unless placed entirely beyond the controul of both. But his object may be accomplished through the medium of trustees, clothed with the custody and the entire disposition of the property, for the benefit of his daughter and her children. It may be unpleasant to them to be deprived of the privilege of spending the property, so given, as they please; but, at the same time, the father had the power of disposing of his property as he thought proper, and they must be content to take it in the manner he has prescribed, or not at all.
It is true, this power may, sometimes, be unnecessarily and capriciously exercised, but is not more likely to be abused than many others, appertaining to the ownership of property. There is much more danger to be apprehended from the power which a father has, of cutting a daughter off from any portion of his estate, or of giving her a mere nominal legacy, than there is, that he will give her the beneficial use of a large share of his estate, and at the same time, unnecessarily deprive her of the controul and disposition of the property. In the latter case, he will be likely to select for trustees, men, to whom her rights may be safely confided. But however this may be, the power, in both respects, exists, and cannot well be controuled, without placing undue restraints upon the alienation of property.
The enquiry, then, in the present case, comes to this; was the property given by the testator to his two sons in [10]*10trust, for the benefit of his daughter and her children, so given as to be subject to her controul, and liable to be bound by her contracts; or were the trustees clothed not only with the custody of the property, but the application of it, according to their discretion, for the purpose specified.
If the former is the fair construction of the will, then the trustees are bound to apply it according to her directions, in the fulfillment of her contracts. If the latter is the true construction, then they are neither to be governed by her orders, nor by any interference of a court of chancery with the exercise of their discretion, until it is shown, that there has been some abuse of their authority.
What are the provisions of the will, in this case? The testator, after giving several legacies, directs the balance of his property to be divided equally among his children, subject to the following provisions and conditions. Those relating to his daughter’s share are briefly these. All the property given to her is for the exclusive use of her and her children, free from any debts or controul of her husband; and to secure the same to their unimpaired enjoyment, he gives the same in trust to his sons, George P. Beirne and Oliver Beirne, with full authority to apply the property as to them shall seem best, for their exclusive benefit, during the life of the daughter, and after her death, to divide the same equally among her children.
Now, in the opinion of a majority of this court, the trustees, by the terms of the will, are clothed not only with the legal title to the property, but the power to apply it, as to them shall seem best, or in other words, according to their discretion. They must indeed apply it for the benefit of the daughter and her children; and were they to appropriate it to any other use, a court of chancery might then interfere, because they would then transcend their authority. But so long as they continue to use the funds for the benefit of their sister and her children, it is for them to apply them according to their judgment. Suppose she should be of opinion, that a particular mode of investment would be best for her and her family; and the trustees should be of an entirely different opinion, and therefore refuse a compliance with her request. Whose judgment is to govern?—hers or theirs? [11]*11This question is to be determined, not by enquiring whose judgment is the best,—but which has the power of deciding.
It seems to us, that the language of the will leaves no possible doubt upon the subject. They have full authority to apply the property, as to them shall seem best, and not as may seem best to her. Suppose the trustees had carefully examined the facts in relation to the purchase of the furniture, and had come to the conclusion, perfectly satisfactory to their minds, that such purchase was not best for their sister and her children, and therefore should refuse their approbation of the purchase, can a court of equity review their decision, and reverse it, if they find it to be wrong? We think the court has no such power.
But it is asked, may she not employ a physician, in a case of sickness in her family, or purchase a necessary article of clothing for her children, without the previous assent of the trustees? How far their refusal, or even neglect to furnish her with the means of providing necessaries for herself and children, would constitute a breach of trust in them, we need not enquire; for no such case is presented for our consideration. It does not appear, that they have ever refused to comply with a single wish of hers, unless it be in their refusal to pay the note in question. And even with respect to that, it does not appear, that she ever made a request to them that they should pay it. Her husband, through his influence, obtained the note from her, upon an agreement on her part, that it should be paid out of the trust property, but without the knowledge of the trustees; and they now refuse to pay it; which is about all there is in the case. Aside from this, it is found, that large and ample funds have been placed subject to her controul.
Whether it was wise or proper for the testator to deprive his daughter of all controul over her share of his estate, and place it in the hands of his sons, to be applied at their discretion, is not for us to say. The only question for us to determine, is, whether he has done so; and we think he has. Nor has he thought proper to assign his reasons, for so doing. Nor was that necessary. We think, however, we need not travel out of the record to enable us to discover enough to induce the belief that he might consider it more safe and beneficial to his daughter and her children, to place the prop[12]*12erty beyond the indirect, as well as direct, controul of his son-in-law. His sons might resist his influence, when the daughter might not.
It appears, that about a year before the death of the testator, Steenbergen purchased a large and expensive dwelling-house in the city of New-York,—furnished it with costly furniture, lived in it but a few months, failed in business, sold the house and furniture, and then went with his family to board at a hotel. Soon after the death of the testator, he applied to the agent of the plaintiff to redeem the house and furniture, with a view of resuming house-keeping. An arrangement is made, by which his wife, at his suggestion, and by his advice, is induced, without the knowledge or approbation of her trustees, to execute a note to the plaintiff for 3,587 dollars, 70 cents, for the furniture, thereby reducing the price to be paid for the house to 12,000 dollars, and instead of occupying the house with his family, it is immediately sold and conveyed to another person. The note is payable in about five months after its execution; and it does not appear, that Oliver Beirne, one of the trustees, who lived in the city of New-York, where the whole arrangement was made, had any knowledge of the transaction until a considerable time after the note became due, and was presented to him for payment. The other trustee had no knowledge whatever upon the subject, until process in this suit was served upon him.
Under these circumstances, what was the duty of the trustees? It is found, that they had, previous to their knowledge of this transaction, made large advancements to their sister, which she had expended at her pleasure. If they paid the note, it might be construed into an implied recognition of her power, by her contracts, to bind the trust property, and induce the husband, by like suggestions and advice, to procure the execution of other notes, to aid him in carrying on other financial operations. They may have thought, and justly too, that the most effectual mode of preserving the property for the unimpaired enjoyment of their sister and her family, was to shut, at once and forever, the door against all debts contracted by him, directly, or in the name of his wife. We cannot, therefore, say, that under such circumstances, the trustees, in refusing payment of [13]*13the note, have been guilty of any breach of the trust reposed in them. At any rate, we think it a matter confided to their discretion, and for them to do, in the language of the will, as to them seemed best.
Again, it is asked, shall Mrs. Steenbergen be permitted to retain the property, and not pay for it? But that is not the question before us. It is simply, whether the trustees shall be ordered to pay for it out of the trust property. And why should they be so ordered? They have never purchased it, directly or indirectly. No conveyance has ever been made to them; they have never received it, and have no controul over it. The plaintiff, instead of dealing with them, has thought proper to deal alone with Steenbergen and his wife, and place them in possession of the furniture. What his rights are, as against them, or in regard to the furniture, is not for us to determine, in the present suit.
A part of the furniture, very soon after the purchase, was sold; and what became of the purchase money, we are not informed. Had the trustees received the property, or had any conveyance been made to them, by which they could controul it, the case would be very different. But no such facts appear.
Again, it is said, that the trustees have a large amount of funds in their hands, and have made large advancements to their sister, and why should they not pay this debt? The amount of the trust estate can have no effect upon the construction of the will, as it makes no reference to the amount. The power of the trustees must remain the same, whether the funds in their hands are an hundred thousand, or only an hundred dollars. And as to the advancements, it was a matter confided to their discretion, and does not, in our opinion, affect the question as to their liability in the present case.
There is another feature in the case, which possibly may be deserving of some attention. The property is not given for the sole use of Mrs. Steenbergen, but for the use of herself and six daughters. If she can bind it, by a contract for the purchase of furniture, why may not each of her daughters do the same, when she becomes of age and is married? And if for furniture, why not for other articles which she may deem suitable for her rank and condition in life? The [14]*14effects of such power in so many different individuals, acting separately and independently, to say the least, would be very troublesome and embarrassing to the trustees. But no such jarring of interests would arise upon the other construction of the will.
For these reasons, a majority of the court are of opinion, that as against the trustees, the plaintiff is not entitled to the relief prayed for in his bill, and advise the superior court to dismiss the same.
Storrs and Hinman, Js., were of the same opinion.