McMahon v. Allen

4 E.D. Smith 519

• Court: New York Court of Common Pleas
• Decided: December 15, 1855
• Status: Published

Opinion

Woodruff, J.

(after stating the facts.)—The following are my conclusions of law, from the facts found in this case:

First. That in and by the instruments referred to as the last will and testament of Ruth S. Rathbone, (afterwards Harrison,) and the codicil thereto, considered irrespective of the marriage settlement agreement and the trusts therein expressed, and also irrespective of the subsequent marriage of said Ruth, the real estate therein mentioned passed directly and by virtue thereof to the devisees therein named, and that no trust or power in or over the same was vested in the executor therein named, as executor, trustee or otherwise, and no act whatever was to be done by him in respect thereto to carry these instruments into full effect. That as to the personal estate therein mentioned, including, of course, the fund to be set apart and invested for the benefit of Lucy Ann Harrison, in the contingency contemplated by the codicil, to wit, the fulfillment by Elizabeth Osborne of her agreement for the purchase of the house number 55 Leonard street, the same vested in the executor therein named, (he proving the will and codicil,) first, for the payment of debts and legacies ; and second, upon and for the execution of the trusts thereby declared, to wit, the sale of the property, the collection of debts due, and the investment of the proceeds and payment of the income to arise therefrom to Samuel 0. and Charles T. Harrison, during their lives respectively; and in respect to the fund directed to be invested for the said Lucy Ann, to suffer her to draw the interest thereon during her natural life; and upon the death of these beneficiaries respectively, to pay over the same as in such will and codicil directed. That the personal property, and all the trusts, powers and duties vested in such executor, or devolved upon him in respect thereto, vested in and were devolved upon him as executor, and as executor only, and not in the character of a trustee, apart from such representative character.

Second. That by virtue of the marriage settlement agreement, and the conveyance and transfer to Solomon ICipp, therein contained, the said instrument, so entitled last will and testament, and the codicil thereto, became, in legal effect, incorporated in or annexed thereto, so that they became and were a valid declaration of the trusts upon which the property was to be held by the said Kipp, and an effectual appointment of the property, both real and personal, in case the said Ruth should die in the lifetime of her intended husband, without making any other appointment or disposition thereof. That the consummation of the said intended marriage being the very event in completion of which the said marriage settlement was entered into, did not in any manner alter the effect of the last will and codicil in this respect. They remained, according to the intent of the said marriage settlement, valid and effectual as such appointment of the property conveyed and assigned to the trustee. Whether the direction given to the trustee (Kipp) in the marriage settlement to convey, assign and transfer the property, real and personal, in conformity with any directions, dispositions or appointment, by the said Ruth S., and in default of other appointment, then to the person or persons named in the aforesaid last will and codicil, rendered an actual conveyance or transfer by the trustee, at her death, necessary to give full legal operation to such will and codicil or not, these instruments ex proprio vigore operated to vest the title in equity, according to the directions in such will and codicil contained. Upon the death of the said Ruth S., nothing remained to he done by the said Kipp, beyond the mere acts of transfer. Eor all purposes material to the consideration of the rights of the parties in a court of equity, the property vested at the death of the said Ruth S., according to the directions contained in such last will and codicil; and whether an actual conveyance of the real estate embraced in the trusts was or was not necessary to vest the legal title in the persons named as devisees in such last will and codicil, it is not necessary, for the purposes of this case, to inquire. The delivery of the personal property, in conformity with the directions contained in the marriage settlement, to the person who was appointed to receive the same for the appointed purposes, and his actual possession thereof, and exercise of acts of control over the same, and his collection and appropriation of the same, sufficiently vested the title in him, whether any assignment or transfer in writing was executed by said Kipp, or not. Indeed, it might, perhaps, he better said that such actual possession and control are sufficient to warrant the inference of an actual transfer by suitable formalities to vest in him the title. Be this as it may, the title vested in equity on the death of the said Ruth S.; and the delivery of the personal property thereupon sufficiently conferred the legal title thereto, and, in my opinion, as effectually as if an actual assignment in writing had been made. And again, after taking such possession and control, it would not lie with John Harrison, or those claiming under him, to allege that he had not title under and according to the provisions of the said appointment. And, finally, the answer of the defendant herein, distinctly avers an actual conveyance and transfer by Solomon Kipp, the trustee, to John Harrison, in obedience to the provisions of the marriage settlement agreement, and, therefore, as against this defendant, such a transfer may, for the purposes of this case, be assumed.

Third. That the execution and delivery of the bond and, mortgage by Frances C. Sage, to the trustee, under the marriage settlement, with the concurrence of the said Ruth S., had the effect of subjecting such bond and mortgage, and the moneys secured thereby, to the operation of the provisions of that instrument, and of the appointment then in being (to wit, the said last will and codicil). It was a conversion of a portion of the real estate held by the said Kipp as trustee, into personal estate. The said Ruth S., by the provisions of the marriage settlement, had power to effect such conversion, and to direct the proceeds, or any part thereof, to remain in the hands of the said trustee; and ■ she did no more than this. Ho assent of John Harrison was necessary to subject those proceeds of a sale of a portion of the trust estate to the operation of the marriage settlement, or the appointment by which the ultimate disposition of the trust estate was to be governed. This bond and mortgage was in no sense after acquired property, in respect to which a new appointment by the said Ruth S. was necessary ; and, therefore, if it were concluded, as insisted by the defendant’s counsel, that in respect to property acquired after the marriage, a new appointment must be made by the said Ruth, or in default thereof, the same must be deemed her property unappointed, and at her death subject to the marital rights of John Harrison, and passing to him as her legal representative for his own use, and without accountability to any one except her creditors, in accordance with our statute regulating the rights of a husband over the property of his deceased wife, (2 Rev. Stat. 75, § 29,) this bond and mortgage did not fall into that condition. By the mere conversion of real estate into personalty, while it was continued in the hands of the trustee, it was not withdrawn from the operation of the trust or the then existing appointment relating thereto. But, on the other hand, if it be conceded that this bond and mortgage, by reason of this entire change in the nature of the property, is to be deemed after acquired property, or if it were conceded (as also insisted by the defendant’s counsel) that the conveyance to Frances 0. Sage was itself an appointment by the said Ruth of the house and lot number 55 Leonard street to the said Sage, which defeated the will and codicil so far as related to that property, the result would not be different; for the power of the said Ruth, under the said marriage settlement, further to appoint the ultimate disposition of the property, still continued, and the making of the bond and mortgage to Kipp, (the trustee,) with the concurcurrence of the said Ruth, was even in that view of the case an adoption of all the provisions of the marriage settlement and the existing appointment, (to wit, the will and codicil,) as effectual as if the said Ruth had, by a new appointment, in form directed the said Kipp to hold the same for the purpose already named in the will and codicil referred to. Whether, by the conversion of the house and lot number 55 Leonard street into personal estate, the making and delivery of the bond and mortgage by Sage to the trustee had the effect to change the ultimate destination ■ thereof from Lucy Ann to the two sons, it is not necessary to decide; and, therefore, whether its ultimate diposition by the trustee, Kipp, or by John Harrison, as executor, or the present plaintiff, is to be In conformity with the directions contained in the codicil, or whether (the sale to Elizabeth Osborne having failed) the same passed under the general direction contained in the will in regard to personal property, does not affect the decision of the present case. It is sufficient to decide that it remained subject to the trust and to the appointment made by the will and codicil, whichsoever of them may, when that question arises, b e held to govern it. If the provisions of the codicil be deemed applicable to any conversion of that house and lot into personalty in the hands of the trustee, Kipp, and the sale and conveyance to Sage be deemed a substitution for the contemplated sale and conveyance to Osborne, then the beneficiary named in the codicil may require that a corresponding amount be invested for her benefit; and if such sale be deemed a revocation of the devise made of the house and lot, and also of the direction contained in the codicil, then Samuel 0. and Charles T. Harrison may require that the proceeds, with the other personal estate, be invested for their benefit. But in either aspect of that question, the appointment contained in the will or the codicil applies to it and will govern it.

Fourth. That although, by the provisions of our statute, a will made by an unmarried female is to be deemed revoked by her subsequent marriage, (2 Rev. Stat. 64, § 36,) such subsequent marriage does not operate to prevent an instrument, executed before the marriage, and established by the marriage settlement, &om taking effect upon the property settled, according to the very terms of the settlement itself. By the marriage settlement in. this case, John Harrison and all those claiming under him are concluded. By the covenants contained therein, he and his heirs, executors and administrators were bound to permit the said last will and codicil to be proved as such; and, therefore, by implication, to acquiesce in all the legal results which flow from their full recognition as the last will and testament of the deceased; whether strictly and technically a last will or not, they are to be deemed such, so far as the legal or equitable rights of John Harrison are affected by them; and, in a court of equity especially, neither he nor his representatives will be permitted, in the face of his express covenant, to deny to them their appropriate effect as such. And again, whether strictly or technically a last will and testament or not, the said will and codicil were, as before suggested, a valid appointment, and were testamentary in their character, and an appointment testamentary, or in the nature of a last will and testament, in which the duties to be performed are such as properly appertain to the character of an executor, (whether made and adopted by a marriage settlement before marriage, or made in pursuance of the marriage settlement after marriage,) is appropriately proved as a testamentary disposition; (at least so far as personal estate is affected by it;) and when the will of said Ruth was so proved in conformity with the express' covenants contained in the marriage settlement itself, it became, as against John Harrison and his representatives, in effect hr equity, and, as I think, at law, the last will and testament of the decedent as truly as if she had not married. Still further, John Harrison, fully competent to protect all his rights, legal and equitable, did, in conformity with his express covenants, suffer the said instrument to be proved as the last will and testament of the decedent, and accepted letters testamentary, and assumed to act as executor. By this I think he was precluded, and that his representatives are precluded from insisting upon the merely technical objection that he was not executor of a will, but trustee under an appointment. And as a consequence of these propositions, and of either of them, John Harrison, at and before his death, held the personal property received by him (which formed a part of the trust estate) as executor, with the powers, and subject to the responsibilities of that character, under and in conformity with the provisions of the said last will and codicil proved before the surrogate, and adopted by him as such; and if, in virtue of his marital rights, he could lawfully claim that those instruments, by reason of the marriage, had lost their original character, he had waived any such claim, and voluntarily established them, notwithstanding any infirmity therein, (if any,) arising from the fact of the marriage of the decedent, so .that, both at law and in equity, he was bound to execute them as the last will and testament of his deceased wife.

Fifth. John Harrison, thus holding the said personal property as executor, having died, letters of administration de honis non, with the will annexed, would confer upon the administrator, and did, when granted, confer upon the plaintiff herein, all the rights and powers in respect to such personal property which were vested in the said Harrison by virtue of said will and codicil; and the title to such property, therefore, passed to the plaintiff, subject to the performance of the trusts, duties and directions (remaining unperformed) in those instruments contained. Whatever doubt may exist in respect to the powers of the administrator de honis non, with the will annexed, over the real estate of the decedent, under the provisions of our statute, (2 Rev. Stat. 72, § 22,) there is none, I think,- in regard to his succession to the powers and duties of the executor in respect to the personal estate left unadministered. (See Concklin v. Egerton, Administrator, 21 Wend. 430, and S. C. in Error, 25 Wend. 224.)

Sixth. And for the same reasons, though for the purposes of collection and preservation merely, the plaintiff, on the receipt of special letters of administration ad colligendMm, became entitled to collect, receive and hold the said personal estate, and as such for that purpose to maintain this suit. In one aspect of the claim made by the defendant herein, the right of the administrator ad coll, to maintain an action for the property, is even more clear.. The defendant insists that as to the bond and mortgage of Frances 0. Sage, the said Euth S. Harrison died intestate, and that John Harrison, in virtue of his marital rights, became entitled to it absolutely for his own use, subject only to the payment of debts. If that were conceded, it would not impair the right of the administrator ad coll, (pending a controversy in regard to the appointment of an administrator de honis non) to sue for and recover the bond and mortgage from a third person who had no title thereto.

Seventh. It follows that the plaintiff in either capacity, whether as an administrator ad coll., in which this suit was commenced, or in his character of administrator de T>onis non ovm test, annexo, in which capacity the suit has been revived in his name, is entitled to recover the personal property in the complaint mentioned, forming part of the trust estate, so far as the same was in the hands of the defendant at the time of the death of the said John Harrison, or has come to his hand since that death.

Eighth. This case has been thus far considered upon the view which I conclude to be the correct construction of the marriage settlement agreement, viz.: That whatever conveyance may have been necessary to vest the title to the real estate held by Kipp, as trustee, it was sufficient, in respect to the personal estate, that John Harrison received it and held it, made collections thereof, and exercised control over it, and that in this he acted as executor as above stated. And the ease has also been considered upon this further view of the marriage settlement, which, though not without some hesitation, I also conclude to be correct, viz., that the duties of the trustee, Solomon Kipp, ceased with the death of the said Ruth S. Harrison, and the transfer by him of the property to the person named as executor in the said last will and codicil ; that he (Solomon Kipp) was not the person who was to carry into execution the provisions of those instruments. Under these views the appointment of a new trustee, so far as the personal property was concerned, was wholly unnecessary, and thus far it has been so considered; and it conferred upon the present plaintiff no better title than he had without such appointment, arid without an assignment or transfer to him by the said Kipp, and for the reason that the power of Kipp over the personal estate had ceased, his trust had been performed, and the property had passed into the hands of John Harrison, nothing remaining to be done by him as trustee of the personal estate, and there was neither title nor trust in him to be transferred. But if the title to the personal property remained in Solomon Kipp until he executed a formal instrument of transfer in writing, or if (as some of the language of the marriage settlement would at first seem to indicate) Solomon Kipp is to be deemed, by force of the marriage settlement, a substituted trustee, appointed (in default of any other appointment or disposition) in the place and stead of the executor of the said last will, to perform the trusts contained in the latter, then, and in either event, the appointment of the plaintiff as trustee in the place and stead of Solomon Kipp, and the conveyance and transfer of the property by Kipp to the plaintiff, devolved upon the latter the actual title to the property, and clothed him with an active trust to be performed in relation thereto, and he is entitled to recover the property upon that very ground. Although I have not adopted the construction last intimated, yet the trust declared in the marriage settlement, in respect to the personal property, is expressed in terms which in no slight degree indicate a design that the trustee (Kipp) was himself to appropriate the property to the uses and purposes appointed in the said last will and codicil. Tims it provides, that “if the said party of the first part shall depart this life in the lifetime of her intended husband, that then the said Kipp shall pay over, assign and transfer the said trust moneys, funds, securities and premises, and interest, and annual production and payments, or such part or parts thereof, respectively, as shall be then unapplied, unappointed and undisposed of, after answering the trusts and purposes hereinbefore contained, to the person or persons named in the aforesaid will and testament above referred to, or to such person or persons as are named in the codicil thereto annexed.” If, by “ person or persons” in this clause be intended the beneficiaries provided for in the will and codicil, viz., the children of the decedent, who are to receive the interest and income, and their lawful issue or heirs at law, who are ultimately to receive the principal, then clearly the trust conferred upon Kipp is still subsisting, and is an active trust, which, by the appointment of the plaintiff as trustee in his stead, and the transfer of the property to him by such former trustee, has, together with the title to the property, devolved upon the plaintiff.

Ninth. In view of the suggestions above eighthly made, I deem it material to state my further conclusions in relation to the effect of the appointment made by the Supreme Court of this state above referred to, and which was claimed by the defendant’s counsel, on the trial, to be inoperative for the want of parties. That court had jurisdiction of the subject matter. It had the plaintiff, who was interested therein as administrator, and also husband of his wife, a beneficiary and the trustee, in its presence and jurisdiction, and satisfactory allegations that the other cestui que trusts in being were out of the state. Its order was therefore operative and effectual, so far as the parties before the court were concerned; and a conveyance by the trustee, in obedience to that order, passed the legal title, and charged the new trustee with the trusts, (so far as such trusts remained to be executed.) This is sufficient to enable the new trustee to maintain his title to the property itself. Where the other cestui que trusts seek to hold the former trustee responsible for their interest in the trust estate, it may be material to inquire whether they were in fact absent from the state, and how far he could be relieved from responsibility by a proceeding of which they had no notice. But as against third persons, the proceeding passed the title, and therefore, as against the present defendant, if there is any thing in the suggestions eighthly above stated, the appointment was valid; nor is its effect impaired because the conveyance was made to the plaintiff as administrator. The transfer of the title was made, and as against this defendant the title passed, and the words, “ as administrator,” &c., may either be regarded as surplusage, or the plaintiff may be said to hold the property charged with such trust, as according to the true construction of the instruments under which it is held, properly appertain to the title. There is no defect in this respect which can avail this defendant.

Tenth. In respect to the bond and mortgage of Frances G. Sage, now in the hands of the receiver herein, the decree will provide that it he delivered to the plaintiff, together with any moneys collected thereon by the receiver, after allowing to the receiver his expenses and commission. In respect to the interest money collected by the defendant on the 8th day of December, 1849, which is the only money which appears by the proofs to have come to his hands and not shown to have been paid over to the executor, John Harrison, there is no claim in the plaintiff’s complaint to this money, nor that the defendant has it in his hands. It is therefore not necessary to say how far the agent or attorney of an executor is liable to his successor in the office for money received in such agency.

Finally. I find nothing in the case to warrant any claim by the defendant to any commission, or to any lien upon the bond and mortgage in question, for services or expenses rendered or paid as the agent or attorney of the late executor. Such former executor could give no such lien if any such services were rendered or expenses incurred. I do not, therefore, perceive that there is any occasion for ordering an account between the parties. I can only regard the defendant, however sincere he may have been in believing that he was not bound to deliver the property, as a wrong doer. The decree should therefore award to the plaintiff the bond and mortgage, and direct its delivery to him by the receiver, and award to the' plaintiff his costs, with an allowance of two hundred and fifty dollars.

A decree was entered, and judgment awarded accordingly.

Daly, J.,

at general term. Without setting forth my reasons at length, which would include a repetition of much that has been said by the judge at special term, I am of opinion that the judgment should be affirmed.

Ingraham, First J., at general term, concurred in affirm ing the decision at the special term.

Decision and judgment affirmed.