Thompson v. Hart

58 A.D. 439, 69 N.Y.S. 223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Hatch, J.:

In arriving at a proper construction of this will I purpose, first, to examine the same and ascertain the rights of the parties thereunder upon the assumption that the real property devised passed thereby, as such, and that its character was not changed by the terms of the will. This necessarily involves a construction of the power and estates in trust created by the will.

' By the 3d clause of the will, after devising and bequeathing the residuary estate to his executors, in trust, the testator provided as follows: “ 1st. In trust, to divide * * * and to allof to my children * * * each, one of said five parts or shares.” This provision, standing alonej creates a power in trust, to be exercised in connection with the estate in trust created by the preceding paragraph;

By the succeeding paragraph a limitation is placed upon the duration of the trust estates, as follows: “ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the case of my son Robert George Remsen the net annual ■ income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support, for and during his life, and in, the case of my other son Charles, and of my daughters, to pay over to them respectively the net annual income of the share or part allotted to them.” This provision clearly cannot be construed as devising to the children mentioned any estate or inter-, est in the real property. A valid express trust is created for their benefit, and the whole legal estate is vested in the trustees, subject to the execution of the trust, performance of which may be enforced by the said children. (Real Prop. Law [Laws of 1896, chap. 547], §§ 76, 80.)

The trust estates were limited, however, to the period of the life of each child to whom a share or part was to be allotted. Therefore, upon the death of Robert George Remsen, the trust estate created for the period of his life would terminate; and the provision of the will is, “ on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters, including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita and not per stirpes.”

Treating this as a devise of remainders over to grandchildren, as we think it must be treated, the trust estate for the life of Robert having terminated with his death, intestate and without issue, the grandchildren became seized in fee of undivided interests in Robert’s share. This gave them an estate in fee as tenants in common of Robert’s undivided interest in the land; and by virtue of the express provisions of the Code of Civil Procedure (§ 1532), they had the legal right to maintain an action of partition, subject, only, to the qualification contained in section 1534 of the Code, where the right to partition in the case of infants is made to depend upon the conseút of the surrogate, and the court must be satisfied that the interests of -the infant will be promoted by a judgment awarding partition. This view is supported by authority. (Campbell v. Stokes, 142 N. Y. 23.) The terms of the will in that case did not vest the legal title to the estate in the trustees. The power to be exercised by them was to divide and allot, and to convey, pay over and deliver upon the death of the child. In the present case, the devise of the estate is to the trustees, and not at all to the children; but by the 2d paragraph of the 3d clause a limitation is placed upon the estate, terminating the same on the death of., the child. And by virtue of this provision of the will,, the estate vested as to such share immediately upon the death of the child, when the estate of the trustees terminated. This condition makes the two cases exactly parallel, so far as the legal rights are concerned. As it was held that the grandchildren in the Campbell case were necessary parties to an action in partition, because the estate had vested in them, so here it must be held that the plaintiff, with the sanction of the court, is entitled to maintain an action of .partition for the same reasons. This case, therefore, is a direct and decisive authority upon the question. ■ Nothing which appears in Henderson v. Henderson (113 N. Y. 1) is contrary to- this rule. That was an action, for the construction of a will. In that case, as here, there was an outstanding power of sale which had never been executed. . The estate in the children at the time the action was brought was an estate in remainder only; and the court properly held that, such being the-nature of the estate, compulsory partition could not be had, as there' was still an outstanding power of sale in the executor, and by the terms of the will it was the intent of the testator that his estate should be partitioned by the trustee and that, as the estate was simply one in remainder, compulsory partition and sale of the land could not be had. This case was correctly decided on principle, as. such estates may be entirely unequal, and partition, if ordered, might be to the advantage of one and the disadvantage of another.. Besides, as between the owners of such estates, power to direct a sale of the premises is withheld, unless upon the consent of the. holder of the particular estate, evidenced in writing. (Code Civ. Proc. § 1533 ; Levy v. Levy, 79 Hun, 290 ; Scheu v. Lehning, 31 id. 183.)

While it may be true that the remaindermen may, under certain circumstances, maintain partition, where actual partition may be had without prejudice to the holder of the particular estate or any of the remaindermen, yet it is evident that it is subject to quite different rules from those which obtain as to estates in fee in possession. In the present case, the action is brought by the plaintiff as owner in fee of an undivided interest in common with other like owners; and as to such cases, except as qualified by the power of the court to withhold actuaT partition or sale in case of infants, the right of partition is absolute. The Henderson case, therefore, cannot be regarded as an authority defeating the right to maintain this action. It is quite possible that although an estate in fee is vested in the plaintiff, it is still subject to the outstanding power of sale in the executors. But such fact cannot be held to defeat the right of the plaintiff to maintain partition in a proper case, for by the provisions of the Code he is vested with such an estate as gives him the absolute right to maintain the action. Undoubtedly the power exists in the plaintiff to compel the execution by the executors of the outstanding power of sale, and an action could be maintained for that purpose (Dana v. Murray, 122 N. Y. 604), but such right is evidently not exclusive. It is a fact, however, which the court may consider, bearing upon the question as to whether or not partition ought to be awarded. We have no doubt but that the court may consider the existence of the outstanding power of sale, and that the parties have never requested the trustees to exercise the power before resorting to the action of partition. While a person entitled to partition may maintain the action, yet the court, in determining whether partition will be awarded, may take all these facts into consideration and conclude therefrom that the demand ought to be made upon the trustees in the first instance and they be given an opportunity to comply therewith before compulsory partition will be awarded.

In the present case the court has denied partition- for the reason that the plaintiff, under the provisions of the will, had no such title as authorized him to maintain such action. Its conclusion in this respect cannot be sustained. The court did not assume to pass upon or determine whether it was for the best interests of the infant that a partition or sale of the premises should be had, or whether demand for division and allotment should have been made of the executors before resorting to an action. The plaintiff was entitled to the judgment of the court upon those questions, and if the plaintiff took the real property as such, the judgment must be reversed and the case remitted to the trial court for disposition of such questions.

It is claimed, however, that under the will in question an equitable conversion of the real property into personalty has been worked by the terms of the will, and that such was the intent of the testator. It is quite easy to construct an argument -in support of this view, and the terms of the will in many respects lend much color to the claim. But a consideration of the whole scope of the will and the language which has been used leads us to the conclusion that it was .not the intent of the testator to work a conversion of his real property. There is no mandatory direction in the will to sell the real property; and while undoubtedly it is not necessary, in order to work an equitable conversion, that there should be an imperative direction to sell, yet it must appear that a conversion of the real property is necessary to accomplish the purpose intended by the general scheme of the will before the permissive authority to sell will be construed as a mandatory direction. (Lent v. Howard, 89 N. Y. 169; Salisbury v. Slade, 160 id. 278.)

We do not think that the terms of this will or the character of the property disposed of makes it necessary to convert the real estate into personalty in order to carry out the intent of the testator. While it is true that there are a large number of separate pieces of real property, some of which were owned solély by the testator in fee and in others of which he owned an Undivided interest with other persons, yet it also appears that the personal estate amounted to $3,000,000 and upwards, and it is quite probable that the executors and trustees could make the allotment provided for in the will in both real and personal property without the necessity of converting the whole of the real estate into money, and certainly, when taken in connection with the ample powers which are given to sell the real estate, it; is far from being impossible to conclude that the ¡allotment of the entire property could be made in specie and fulfill to the letter the terms of the will. Under such circumstances it is readily seen that there is no such blending of the entire estate as to create a common fund. On the contrary, the character of the property can be kept entirely separate and the allotment made as the will provides. In addition to this, by the express provisions of the will, the executors and trustees: are authorized to invest the whole or any part of the estate in real property as well as' in personal securities. If the executors and trustees, in the discharge of their duties, invested the whole of the estate in real property, they would comply with the provisions of the will and evidently fulfill the intent of the testator. If the directions in this respect were followed by the executors and trustees and the whole of the estate invested in real property, the allotment could still be made and the scheme of the will be fulfilled. Under such circumstances it cannot be doubted but that the persons entitled would take the estate as real property, and no one could question but that compliance would be had with the terms of the will. In this connection the language of the will, when the time of distribution arrives, is “ to convey, pay over and distributed’ Manifestly the word “ convey ” is appropriate to the transfer of real property and entirely inappropriate to the transfer of personal estate. And while the thing to be conveyed is capital and accumulations, yet inasmuch as the shares to be distributed under the allotment may consist of real or personal property, or both, the share is not inaptly designated as capital and accumulations. It is evident that the word “ capital ” is here used to designate the shares and not to characterize the estate directed to be conveyed. The word “ accumulations ” is quite appropriate, as it is apt to describe the rents, issues and profits which may arise from the whole estate in the course of the administration of the trust. This language in connection with the thing to be paid over, it may be conceded, does not accurately and technically describe real property ; but when the words are considered with the language directing distribution and the whole scheme of the will; it is readily apparent that no violence is done in holding that the words themselves embrace either real or' personal property, or both.

We have examined with some care all of the authorities which have been cited by the respective counsel in support of the contention that the will worked an equitable conversion of the real estate into personalty. It is not necessary that we discuss each one in detail. Probably the strongest case in support of the claim is that of Delafield v. Barlow (107 N. Y. 535). This was a border case, and while the court held that an equitable conversion was worked by the terms of the will then under consideration, yet they arrived at such conclusion with doubt and hesitation. In that case as here there was the devise of both real and personal property with a direction to allot into shares. The power of sale was not mandatory but permissive* and in these respects the cases are quite parallel. In other respects there is a radical difference. In the Delafield case the language of "gift is “ I give and bequeath; ” and the court held that this language was strictly applicable to a bequest of personal property. In the present case the language of the will is “ I give, devise and bequeath ” — language which excludes the idea that personal property only was to pass, and which is peculiarly appropriate to the character of the property which in fact passed to the trustees. In the Delafield case the language of distribution was “ pay over, transfer and deliver”—language which finds proper application only when a bequest of personal estate is made. In the present will the'language of distribution is “convey, pay over and distribute.” Such language is apt and appropriate, to transfer both real and personal property. Aside from this difference in language, however, there is contained in the present will a direction to the executors and trustees to invest the whole or any part of the estate in real property, and' as we have before pointed out, if such direction be followed, the whole of the estate might be conveyed as real property to those entitled to take, and the will in its entirety be fulfilled. It seems clear, therefore, that the Delafield case, instead of being an authority in favor of the contention that an equitable conversion is worked, when analyzed, becomes a distinct authority opposed thereto. It cannot be doubted that had the words of gift and- the direction to distribute in the Delafield case been “ devise ” and “ convey,” the decision would have gone the other way. While further force is added in the present case by the direction to invest in real property. No case, we think, can be •found in this jurisdiction which adds any strength to the doctrine ■laid, down in the Delajield case. It is, therefore, not necessary to refer to the numerous discussions which have been had in other •cases.

Isolated portions, of this will may be laid hold of, and color be lent to the claim that an equitable conversion was intended and worked thereby, but when the whole scheme of the will is examined ■it seems clear that an equitable conversion was neither worked nor ■intended. ■ These views lead us to the conclusion that there was fib conversion of this estate into personalty.

So far as the costs and allowances are concerned, which have been awarded against the plaintiff, we think that they ought not to be permitted to stand. The executors and trustees have failed to execute this Will in accordance with its terms, and the plaintiff was clearly justified in making the attempt in this action to assert his-rights.

It follows that the judgment should be reversed and a new trial granted, with costs to all parties payable' out of the estate.

Yan Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial granted, costs to all parties payable out of the estate.