Locke v. Farmers' Loan & Trust Co.

21 N.Y.S. 524, 73 N.Y. Sup. Ct. 428, 50 N.Y. St. Rep. 287, 66 Hun 428

• Court: New York Supreme Court
• Decided: December 16, 1892
• Status: Published

Opinions

VAN BRUNT, P. J.

This action was brought by the executors of the will of Jonathan Scoville to obtain the determination of the court as-to the validity of a certain trust attempted to be created by the testator by an instrument in the form of a declaration of trust, and as to the effect and validity- of the will of the testator in relation to such attempted trust, and the property affected thereby. In January, 1887, the testator executed in triplicate a paper in the following words:

“Belt remembered, that I, Jonathan Scoville, of the city of Buffalo, county of Erie, and state of New York, owner of four hundred shares of the capital stock of the New York and Harlem Railroad Company, of fifty dollars each, and evidenced by four certain certificates thereof, numbered 21,815, 21,816, 21,817, and-21,818, respectively, have and do hereby dedicate and set apart, from and after the date hereof, in whose possession soever the said several certificates of stock may come without actual transfer, all and singular, the net income and dividends hereafter to accrue and become due and receivable from time to time thereon, in. trust to myself, or to any custodian in whose hands the said certificates of stock may be deposited, by me or by my order, for the like purpose, and to and for the-following uses'and purposes, that is to say: The said net income or dividends of the said stock, as often as received, from time to time, shall be apportioned into ten equal parts, three of which parts shall be paid over to the use and benefit of Magdalena Rings, of Buffalo, N. Y.; three parts thereof shall be paid over to the use and benefit of Anna M. Rings, of the same place; two parts thereof shall be paid over to Henry 0. Rings, of the same place, for and during his natural life; and two parts' thereof shall be paid over to Minnie M. Rings, of the same place, for and during her natural life: provided, however, that in case of the decease or marriage of the said Magdalena Rings, or the decease of the said Anna M. Rings, whichever event shall first happen, then the portion so allotted to such person shall, from and after the happening of such event, be paid over to the use and benefit of the St. John’s Episcopal Church and Society of the town of Salisbury, state of Connecticut, and the portion allotted to the other shall after her decease (or marriage, if it be the said Magdalena) be paid over to the use and benefit of the Buffalo Orphan Asylum (Protestant) of the city of Buffalo; and, upon the decease of the said Henry C. Rings, the portion so allotted to him shall thenceforth be paid to the use and benefit of the St. Vincent’s Female Asylum of the city of Buffalo; and, upon the decease of the said Minnie M. Rings, the portion so allotted to her shall be thereafter paid to the use and benefit of the Buffalo Hospital of the Sisters of Charity. And it is hereby expressly provided, from and out Of the said income so apportioned to the said Magdalena and Anna M. Rings, they shall each bear and pay an equal portion of the taxes, repairs, and insurance of the premises this day leased to the beneficiaries herein named. For the purposes of this instrument, the said Magdalena Rings shall be considered the guardian of the property and rights of the said Henry 0. Rings and Minnie M. Rings during minority, and, upon her marriage or decease, then the said AnnaM. Rings, if surviving and unmarriéd, shall be deemed such guardian; otherwise, a guardian for the said minors shall be duly appointed. The right to cancel or otherwise modify this instrument, at any and all times, is hereby expressly reserved to me, notwithstanding any provision herein contained.

“Witness my hand, this fifth day of January, A. D. 1887.

“Jonathan Scoville. ”

One of the originals, and the certificates of stock mentioned in it, and which are the subject-matter of the trust, were then deposited in a sealed envelope, in the box of Scoville, in the Mercantile Safe-Deposit Company of the city of New York; another of the originals was delivered to the beneficiaries named in the trust; and the remaining one was delivered to and deposited with one M. A. Whitney, a lawyer in the city of Buffalo. Scoville died on the 4th of March, 1891, leaving a last will and testament dated the 27th of December, 1890, and a codicil thereto, bearing date the 21st of February, 1891, which were duly admitted to probate, and letters testamentary issued thereon. At the time of the death of said Scoville, the deed of trust and certificates still remained in the envelope, with the seal unbroken, and deposited with the Mercantile Safe-Deposit Company. The sixth article of Scoville’s will refers to this deed of trust, and is as follows:

“Article Sixth. I have executed and deposited in the Mercantile Safe-Deposit Company of the city of New York a certain deed of trust, which affects a portion of my estate, which portion is more particularly described in a paper inclosed with such deed of trust. I direct my executors to carry out the provisions of this deed of trust, so far as they can; but, in case any unforeseen circumstances should prevent its performance and execution in full, then I direct that the sum of two thousand dollars per annum be paid by my executors to the beneficiaries named in such deed of trust, in the proportions mentioned in such deed of trust, and I direct that my executors set apart a sum sufficient to produce the net annual income of two thousand dollars, and to invest and reinvest the'same, and out of the income fulfill my directions in that regard. Should any unforeseen circumstances prevent the carrying out of the terms of said deed of trust, then the securities mentioned and connected therewith are to be deemed a portion of my residuary estate, (but under no circumstances, in case it is deemed invalid, shall it affect this article.) ”

By the codicil the Farmers’ Loan & Trust Company and one Locke were appointed trustees of the trusts expressed in or created by the said article 6 and other articles of the will. The court at special term held the deed of trust invalid as to all the beneficiaries, and from the judgment thereupon entered this appeal is taken.

It is clear that there was no trust, valid or otherwise, created by the sixth article of the will, because the deed of trust is not incorporated in the will, and the sixth article, by itself, makes no disposition whatever of the property mentioned or referred to therein, and it can receive no validity by its reference to the deed of trust, because such deed was not incorporated in such will; it being the law of this state that an unattested paper, which is of a testamentary nature, cannot be taken as a part of the will, even though it be referred to by that instrument. In order that such a paper may have the force of a testamentary disposition of property, it must be authenticated according to the provisions of our statute of wills, and the deed of trust, not being so authenticated, cannot be sustained as part and parcel of the will. But we think that the separation by Mr. Scoville of those shares of stock from the bulk of his estate, and the execution by him of the declaration of trust, (and by “execution” we include all that is a necessary element to a complete execution of an instrument,) were sufficient to subject the shares of stock to the trusts set forth in such declaration, provided that a trust such as was attempted to be created was permitted by our statutes. As was said in the case of Barry v. Lambert, 98 N. Y. 306:

“It is well settled that a trust in personal property may be created by paroi, and that no particular form of words is necessary for its creation, but the words or acts relied on to effect that object should be unequivocal, and plainly imply that the party making them intended to divest himself of the interest in the property, and to hold it thereafter for the use and benefit of another. This is all that is required to create a trust, even as against the owner, and although he continues to retain possession of the property devoted to the trust. ”

This brings us to the question whether the trust attempted to be created was one in contravention of the statute forbidding perpetuities. A very brief examination of the deed of trust will show what the intention of the creator of the trust was. He refers to 400 shares of the capital stock of the New York & Harlem Railway Company represented by 4 certificates of which he is the owner; and he, by said deed of trust, dedicates and sets apart, from and after the date thereof, in whose possession soever the said several certificates of stock might come without actual transfer, all and singular, the net income and dividends thereafter to accrue and become due and receivable, from time to time,, thereon. This net income or dividends he directs to be apportioned into 10 equal parts, 3 of which shall be paid to the use and benefit of Magdalena Rings, of Buffalo, N. Y.; 3 parts thereof to the use and benefit of Anna M. Rings, of the same place; 2 parts thereof to Henry C. Rings, of the same place, for and during his natural life; and 2 parts to Minnie M. Rings, of the same place, for and during her natural life, —with a proviso that in case of the decease or marriage of said Magdalena Rings, or the decease of said Anna M. Rings, whichever event should first happen, the portion allotted to such person should, from and after the happening of such event, be paid over to the use and benefit of a certain Episcopal church in the town of Salisbury, Conn., and that the portion allotted to the other should after her decease (or marriage, if it were the said Magdalena Rings) be paid over to the use and benefit of an orphan asylum in the city of Buffalo, and that upon the decease of said Henry C. Rings the portion so allotted to him should thenceforth be paid to the use and benefit of the St. Vincent’s Female Asylum of the city of Buffalo, and upon the decease of said Minnie M. Rings the portion allotted to her should be paid over to the use and benefit of the Buffalo Hospital of the Sisters of Charity. It will thus be seen that there is no disposition of the principal forming the corpus of this trust fund; and it is perfectly clear that there was no intention upon the part of the creator of the "trust to make any disposition of such principal, because, as soon as the first beneficiaries died, the direction is that the income should be paid to a corporation, which is supposed néver to die," and it is income which is treated of all the time. It is plain that it was his intention that the trust, fund should be kept in solido during all this time, because otherwise there could be no division of the income into 10 parts, as is directed. It is thus manifest that the absolute disposition of. the whole corpus of this fund is suspended for more than two lives in being, and such was the intention of the creator of the trust.

It is undoubtedly true that income and principal given in equal shares out of one fund, kept in solido for mere convenience of investment, may be severed, and independent trusts created for the several beneficiaries; and thus the shares and interests will be several, even though the fund remain undivided. Schermerhorn v. Cotting, 131 N. Y. 60, 29 N. E. Rep. 980. But upon an examination of the facts of that case, it will be seen that the suspension of the power of alienation of the share of each of the beneficiaries was made to depend upon two lives in being, only, and it was the plain intention of the testator that the principal should descend absolutely upon the termination of such two lives in being. In the case at bar, we look in vain for the expression of any such intention. Upon the contrary, there is no provision -whatever for the vesting of the principal at any time; and the very fact that the creator of the trust provided that the second beneficiary of each one of those shares should be a corporation, and the gift is only of a certain share of income, and not of principal, "shows that all that, he intended to give the corporation was the income, and not the principal. It also shows the intention that none of the principal was to be released from the trust, and that only income, under any circumstances, was to be paid over. It seems to us that it is so plain that this was the intention of Scoville, that if the courts are to construe an instrument of this character as exhibiting an intention to create separate and distinct trusts, rather than to put one undivided fund in trust, then it will be impossible for the creator of a trust, however much he may desire to do so, to express any intention to have a fund remain in solido. The rule undoubtedly is, with respect to instruments of this character, ■that, where it can he done without violence to the intention of the creator of a trust, that construction will be given to the clause which •will sustain the intended trust, rather than one that will defeat it. But •where the general meaning of the language of the instrument shows that there was an intention to tira vide for an illegal extension of the 'trust term, and that any other construction will do violence to the plain •language of the instrument, then the court can only found its judgment ■upon the manifest intention of the creator of the trust. In the case at bar, as we have already seen, it was beyond question the intention of Mr-. Scoville that the corpus of this fund should remain for an unlimited period, yielding income, which he gave to the numerous beneficiaries mentioned in the trust deed; and this was a clear violation of ■ the statute against perpetuities.

The judgment should be affirmed, with costs.