Van Vechten v. Van Veghten

8 Paige Ch. 104, 1840 N.Y. LEXIS 466, 1840 N.Y. Misc. LEXIS 100

Opinion

The Chancellor.

The first question, as to which the parties in this case ask for a judicial construction of the testator’s will, arises upon the provisions contained in the second clause thereof, discharging the complainant from all notes which the testator holds against him, and from all charges on book, or otherwise, against him for loans or advances to or for him, and all claims for the use or rents of the two houses mentioned or referred to in that clause of the will. This provision, as well as the similar provision in the same clause, fur the release of W. Van Veghten, the son-in-law, of what he owed on account of moneys advanced to or for him, by the testator, are in the nature of personal legacies of the several sums thus due from them respectively. And, in the absence of any thing from which it can be inferred that it was the intention of the testator to confine these testamentary bequests to what was due at the date of the will, the provision must be construed to include all sums thus due at the time of his death, and to ex-.elude any thing which had been paid, or secured in a different manner, previous to that event. Although, as a general rule, it is well settled that a will of personal property relates to the time of the death of the testator, both as to the legatees and the subjects of the bequests mentioned in the will, yet, in the case of specific legacies, it is sometimes very difficult to ascertain whether he intended to confine the bequests to the subject matter thereof as it existed at the time of making the will, or as it might exist at the time when such will should take effect by his death. But to take the case out of the general rule, that in a will of personal estate, the testator is presumed to speak with reference to the time of his death, there must be something .in the nature of the property or thing bequeathed, or in the language used by the testator in making the bequest thereof, to show that he intended to confine his gift to the property, or subject of the bequest, as it existed at the time of the making of the will.

In the case of Sayer v. Sayer, (Gilb. Eq. Rep. 87,) where the testator bequeathed all his personal estate in Wanstead, to J. S., as a specific legacy, Lord Cowper decided, that the bequest related to the time of the death of the .testator ; and therefore that the testator’s coach and horses, which were at that place at the time of his death, and all the arrears of rent then due, issuing out of his lands there, belonged to the legatee. And this case appears to have been followed in most of the subsequent decisions, where the terms of the legacy were general, as in the case under consideration ; except in those cases in which - the language of the will itself clearly indicated the intention of the testator to confine the bequest to the time of the execution of the will merely. (See 1 Roper on Leg. 188; and 2 Will, on Executors, 885.) The decision in Sayer v. Sayer was also in strict accordance with a previous decision of Sir Nathan Wright, made in the case of Gayre v. Gayre v. North, (2 Vern. Rep. 538,) a few months before the great seal was delivered to Lord Cowper the first time, in 1705.

The case of Smallman v. Goolden, (1 Cox’s C. C. 329,) is certainly an authority against the complainant on this question ; so far as a decision of the master of the rolls can be said to be an authority, when it conflicts wfith previous decisions of the holders of the great seal. In that case the bequest to the son was general, of all sums of money due to the testator on bond, or bonds, or any other security. And the son, at the date of the will, being indebted to the testator upon one bond only, and becoming indebted to him in another bond afterwards, Lord ICenyon held that the first bond only passed by the bequest, and that the subsequent bond debt was not included therein. If there had been any thing in the language of the will) in that case, to confine the bequest to debts then existing—for instance, the words “ now due,” which were used by the testator, in the case of the Attorney General v. Berry, (1 Eq. Cas. Abr. 201)—I should have fully concurred in the conclusion at which the master of the rolls arrived. But as the testator had used general words, which were broad enough to include the subsequent bond as well as the one then in existence, the words “ all bonds,” in the plural being used, when there was but one bond at the time of the making of the will, I think the decision in that case was in conflict with the whole current of authorities in reference to wills of personal estate. All question on the subject is now put at rest, in England, by the 24th section of the recent statute of wills, (1 Vict. ch. 26;) which declares, in accordance with what Mr. Williams supposed to have been the true rule on the subject previous to that time, that a will, in reference to the estate comprised therein, shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. And the same rule is now extended to wills of real estate ; which before that statute had reference to their dates only, and could not transfer the title to after acquired lands by any form of expression.

The supposition of Lord Kenyon, that the testator intended to measure his bounty according to the situation at the time of making his will, although he had used general terms which were broad enough to cover any bonds, or other securities, which he might have against his son at the time of his death, could with equal propriety be applied to a general bequest of all the testator’s furniture, horses, or bank stocks ; as to which there is no doubt that a bequest in those general terms, without any words of restriction, would carry to the legatee all of that description of property which the testator had at the time of his death, although the whole, or a very considerable part thereof, was acquired after the making of the will. In the case under consideration, the language of the will is equally broad and comprehensive, to cover all notes which the testator held against his son, and all charges made against him on book or otherwise for loans or advances to or for him, and all claims against him for the use and occupation of, or the rents received by him, for either of the two houses and lots therein referred to. And there is nothing to indicate an intention on the part of the testator to confine this devise to the debt as it then existed, or to the rents or use of the houses up to the date of the will only. On the contrary, there is reason to suppose, from the will itself, independent of the general rule of law on the subject, that as to the use and occupation of the house and lot where the complainant then resided, the testator did in fact intend to bequeath the same to him; as it was the same house and lot which had been specifically devised to him in the previous part of the same clause in the will. When we take into consideration, in connection with this, the well known fact, that the testator was one of our ablest and most distinguished lawyers, and was therefore well acquainted with the general rule of law on this subject, I think there can be no doubt that this provision in his will must have reference to the state of the subject matter of the bequest as it existed at the time of his death. All debts, therefore, which were due from the complainant, or from Walter Van Veghten, the son-in-law, to the testator at the time of his death, and which answer the description contained in this clause of the will, are discharged ; except as against creditors of the estate, who will have a right to resort to the same in case of a deficiency of other property to pay the debts.

The recent decision of the court for the correction of errors, in the case of Darling and others v. Rogers and Sagory, decided in December, 1839, in which it was settled that a conveyance in trust was valid, so as to vest the estate in the trustees pro tanto, if any of the trusts therein specified were authorized by the revised statutes, although the property was conveyed upon other express trusts which were prohibited by law, has relieved me from much embarrassment in relation to some of the trusts in this will. Previous to that decision, I supposed that the 58th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 729,) which declares that where an express trust shall be created for any purpose not specified in the statute, no estate whatever shall vest in the trustee, when taken in connection with the previous decisions of the same court in Coster v. Lorillard and in Hawley v. James, in which cases 1 had attempted to separate the legal from the illegal parts of the trusts, precluded the possibility of making such a separation, where an estate not divisible in its nature was attempted to be conveyed to the trustees. It being now settled that any legal trust is sufficient to sustain a conveyance, to the trustee, of an estate commensurate with such trust, without reference to the illegal trusts which the testator or grantor has attempted to create in the same estate, there will be no difficulty hereafter in vesting the legal title in the trustee for any purpose which is authorized by the revised statutes; without reference to the illegal trusts connected therewith. But as "the court of dernier resort, in its recent decision, has not in terms overruled that part of its decision in the case of Coster v. Lorillard, in which it was held that a trust to receive the rents and profits of real estate and apply them to the use of more than two persons for life, with contingent cross remainders in the shares of each, was void as to the shares of each cestui que trust, even for his or her own life, it appears to be impossible in the present case to sustain the devise of the testator’s dwelling-house and lot in Market-street. As to that house and lot, it was unquestionably the intention of the testator that it should remain in the hands of his executors, to lease the same and to receive the rents and profits thereof, so long as any of his daughters should live; as the share in the rents and profits of either of them who shall die without issue living at the time of her death, is given over, to or for the use of the survivors. And as my attempt to carry into effect the in tention of the testator as far as was practicable consistently with the rules of law, by considering the share of each cestui que trust as a tenant in common in the rents and profits of the real estate as a separate and independent trust, was disallowed by the court of dernier resort, in the case of LorillarcPs will, I am admonished by that decision, that it would be improper for me to attempt to sustain the devise of the Market-street house and lot, even for the lives of the several cestuis que trust in their respective shares. I must therefore declare that the devise of that part of the testator’s property is void and inoperative; and that the executors, as such, have no estate or interest therein under the will, and have no right or authority to lease the same, or to receive the rents or profits thereof. That house and lot, upon the death of the testator, descended to his five children as tenants in common. And the rents and profits thereof, since that time, belong absolutely to them, or to the husbands of such of the daughters as were married, in equal shares ; and must be distributed accordingly.

I should have had the same difficulty in sustaining the devise of the residue of the testator’s real estate, on the ground that the testator had authorized that to be leased for the same length of time if the trustees thought proper to do so instead of selling the same, had it not been for the decision of the court for the correction of errors in the case of Darling and others v. Rogers Sagory, to which I have before alluded. But that case shows, that where property is conveyed in trust, with authority to the trustee either to sell or mortgage the same, in his discretion, and the power to mortgage is illegal and void, the trust is still good as to the power to sell. In other words, the power to mortgage being void, it is an absolute power to sell; not depending upon the discretion of the trustee but upon the right of the cestui que trust to compel the execution of the power. Applying the principle of that decision to the present case, as the discretionary power to lease the premises and to receive the rents and profits for a term which might by possibility continue for more than two lives is illegal and void, the devise in trust must be construed in the same manner as it would have been if the power to lease such real estate had been left out; and as though the only power in trust, in relation t.o the real estate, was a mere power to sell and convey the same and convert it into personal estate, for the benefit of the legatees ; and to invest the proceeds of their respective shares thereof upon such of the trusts directed by the testator as were legal, if any of them were so. No other construction can be given to this part of the will consistently with the decision of the court of dernier resort in the last mentioned case. And such a construction does not appear to be in actual conflict with the decrees of that court in the cases of the Lorillard, James, and Hone."wills ; except the decision relative to some of the annuities in the first case, and the declaring of the legacy to Anna McBride James void in the second case. But I admit this construction may be inconsistent with the opinions of some of the members of that court in all of those cases.

The power to lease the testator’s real estate, and to receive the rents thereof for the use of his children during the lives of the four daughters being void, on the ground that such a trust would suspend the power of alienation beyond the limit allowed by law, the legal title was not vested in the executors by the will. But it descended to the heirs at law, under the provisions of the 56th section of the article of the revised statutes relative to uses and trusts, to which I have before referred ; subject to the execution of the power in trust, to sell the same for the benefit of the legatees, and to invest their respective shares thereof as personal estate, for all the valid purposes of the will. (1 R. S. 129, § 36.) A difficulty would still exist, if the executors had an unlimited discretion to execute this power of sale at any time during the lives of the four daughters. Such a power would not indeed suspend the power of alienation ; as the trustees might at any time convey an absolute estate in the premises, by the execution of the power, without any violation of the trust. But as the personal estate of the testator may not be, and probably is not, sufficient to make up the shares of the daughters respectively, including the $1200 which is to be deducted from the share of Ann, to the $6000 which is to be deducted for the share of the son, it appears to be necessary, in order to carry into effect the intent of the testator and prevent injustice, not only that this power in trust to sell and convert the real estate for the purposes of the will should be sustained, but also that it should be sustained as an imperative power ; the execution of which may be enforced by a decree of this court, if the executors should neglect or refuse to execute the same. The devise to the complainant, of the house and lot on which he resided at the date of the will, was absolute and unconditional j and vested in him an indefeasible estate of inheritance, in fee simple, at the death of the testator. No provision is made by the testator for giving to the other children an equivalent for the $6000 at which that house and lot is estimated by him, except by deducting the $6000 from his son’s share of the residue of the estate, in the settlement and division thereof as personal estate which the testator has directed in his will. And if this power in trust fails, or is not executed until the complainant and his co-executor think proper to do so voluntarily, he may continue to receive one-fifth of all the rents and profits of the other real estate, without giving to his sisters any equivalent for the $6000 at which his house and lot is valued by the testator ; in case the personal estate is insufficient, or the division thereof as contemplated by the testator is found to be illegal and therefore impracticable.

I think however, if the power to sell the residue of the testator’s real estate, except the house and lot on Market-street, can be sustained as a valid power in trust, the case will be relieved from the embarrassment of having an unequal distribution of the estate of the testator among his children, contrary to his evident intention. For by the 96th section of the article of the revised statutes relative to powers, it is declared that every trust power, unless its execution is made expressly to depend upon the will of the grantee, imperative 5 and imposes a duty on such grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. (1 R. S. 734.) And, in all such cases, this court requires the power in trust to be executed in such manner as to produce no injustice to any of the parties. The trustee of sucha power, therefore, can never be permitted to execute it at such a time or in such a manner as to defeat the intention of the party creating the power. And where it is necessary to carry into effect the intention of the testator, under a power in trust to convert real estate into personalty or personal estate into realty, so as to produce no injustice as between the different objects of his bounty, this court considers the conversion as having been made at the death of the testator ; or at least, within one year thereafter. (See Leigh & Dalz. Eq. Conv. 48.)

Having arrived at the conclusion that the power in trust to convert the real estate into personalty, in this case, is such as not to produce any suspension of the power of alienation of such real estate, and that to carry into effect the intention of the testator the execution of the power may be enforced in equity in reference to the time of the death of the testator, when the absolute devise to his son took effect, it remains to consider whether any, and if any which of the purposes for which the conversion is directed were legal and valid. For if the whole of the trusts upon which the converted funds are directed to be invested are illegal, the power in trust to sell the real estate is void.

The general plan of the testator’s will appears to be, to divide his personal estate, and the proceeds of his real estate which was to be converted into personalty, into five equal shares, for the benefit of his five children respectively ; the advance of $1200 which had been made to the husband of his daughter Ann being considered as a part of her share, and to be deducted therefrom, and the estimated value of the house and lot devised to the son being considered as a part of his share. And though the language of the will is not perfectly clear, I think he intended to give to his son an absolute estate or interest in fee in his share. It is given to him and his heirs and assigns. But the interests of the daughters, in their several shares of the personal estate and of the converted fund, the testator evidently intended should be interests of a different nature. Ann was then married. And it is certain he meant to place her share entirely beyond the reach of her husband and his creditors; not only as to the original share, but also as to any accumulations which it might receive by the death of either of the other daughters without leaving issue. In this respect only does it differ from the interests of the other three daughters in their respective shares. He intended that his daughter Ann should not only have the whole income of her share, as her separate estate, but that the executors should also, from time to time, apply so much of the principal of her share as might be necessary, for her support, if the income was not sufficient for that purpose ; and that the shares of the other three daughters, respectively, should be applied for their support and maintenance in the same manner. No provision is made for the disposal of any surplus income of the shares of either of the daughters ; as the testator was unquestionably satisfied that if each received such a support as he intended she should have out of her share of the estate, she would not only require the whole income but also a part of the capital to be appropriated for that purpose. The income of one daughter’s share cannot therefore be applied to the support of another daughter ; neither can the executors retain or accumulate any part of the income of the share of either, without her consent. But they must apply, or pay over to her for her support, the whole income if she thinks proper to claim it; and so much of the principal as may be necessary, from time to time, in addition to such income. In the case of Gott v. Cook, (7 Paige’s Rep. 538,) the principles are stated upon which trustees are to act in the application of a trust fund, or the income thereof, to the support of the cestuis que trust. And these executors will be protected sú long as they act in accordance with those principles ; whether they apply the income, &c. of the fund themselves to the wants of the cestuis que trust, or place the same in their hands, from time to time, to be applied by the cestuis que trust for themselves. But as the principal of the fund which has notbeen expended from time to time is limited over to others, upon the deaths of the daughters respectively, the executors will not be justified in appropriating either the principal or the income in advance. The remainders in fee, in the shares of such of the daughters as shall leave issue living at the time of their respective deaths, are not in terms given to any one. But by necessary implication from the whole will, the children or issue of either of the daughters, who are living at her death, will be entitled to an absolute interest in so much of her share as is then unexpended; although no words importing an absolute interest in fee in the children or issue are used. (1 R. S. 748, tit. 5, § 1, 2.) The direction to the executors, to apply the same to the support and education of such issue, applies to the capital of the fund, and was undoubtedly intended to ¡movide for the issue as minors ; it is therefore not inconsistent with the idea that the testator intended to give such issue the absolute ownership of the fund.

Although the testator in his will is supposed to speak in reference to the time of his death, it does not necessarily follow that the outfits which the daughters who marry are to receive, as legacies in addition to their shares, apply only to marriages which should take place after the testator’s death. It is not unreasonable to suppose he may have contemplated giving them these legacies after his death, as marriage portions, even if the marriages should take place in his lifetime ; but payment of such marriage portions to the daughters in the lifetime of the testator, would have operated as an ademption of the legacies. In the case of Mrs. Barker’s marriage portion, the legacy was not absolute ; but a discretionary power was given to the trustees to give her a marriage portion if she married during the continuance of the trust. She married, however, before the trust commenced, and when the discretionary power, which the testator had given to others in case she married after his death, could have been exercised by himself. And it was for these reasons that I thought her case was not provided for by the will. (See 5 Paige’s Rep. 477.) In this case, I think the two daughters who married during the lifetime of the testator, are each entitled to an outfit of $700, with interest thereon from the end of one year after the death of the testator; at which time those legacies should have been paid. And to provide for the outfit of the remaining daughter, the sum of $700 must be invested until it is ascertained whether the contingency upon which that legacy is payable will ever happen • the income thereof in the mean time is to be divided into five equal shares, and to be distributed or applied by the executors in the same manner that the income of the residue of the shares of the five children is to be distributed or applied. This provision for the payment of a future and contingent legacy out of personal estate, or out of real estate which is directed to be converted into personalty for the purposes of the will, does not violate any provision of the revised statutes; as it cannot interfere with the absolute disposition of any other part of the fund. And the absolute ownership of this part of the fund can in no event be suspended for a longer period than two lives in being at the death of the testator, to wit, the life of the unmarried daughter, upon the contingency of whose future marriage her right to the legacy depends, and the lives of the other daughters respectively into whose shares portions of the $700 may go, if she dies unmarried.

The words “ in addition .to the above share,” in the sixth clause of will, do not indicate an intention of the testator that the share is to be absolutely payable on the marriage of the daughters respectively; but were used by him to show that the marriage portion was to be in addition to the equal share of the estate, and was not to be carved out of that share exclusively. The executors are therefore bound to retain the principal of the original share of each of the daughters, which is not wanted for her support from time to time, and to keep the same invested during her life. And upon the death of either of the daughters without leaving issue, what remains of her share is to be distributed equally between the surviving children of the testator, and the heirs—that is, the children or descendants of such of the testator’s children as have died leaving issue ; except the share to which Ann may be entitled in the share of a deceased sister, which is to be held by the executors as trustees for her separate use, free from the control of her husband, during the continuance of her life. The income and so much of the principal as is necessary for that purpose must be applied for her support. And what remains thereof at her death, will belong to her absolutely ; and may be disposed of by her will as her separate estate. But what remains of her original share, if any thing, will then belong absolutely to her children or issue if she has any ; and if she has none, it will then belong to her surviving sisters and brother, and the children or issue of such of them as have died leaving issue, in fee.

In trusts of personal estate, or of money which is infinitely divisible in its nature, a suspension of the absolute ownership as to one part of the fund for a longer period than is allowed by law, will not make void the disposition which has been made of another part thereof. As the statutory rules as to limitations of future contingent interests in lands are applicable to similar interests in personal property, any limitation of a future interest or use in any particular portion of a personal fund, which would have the effect to suspend the absolute ownership of that part of the fund for a larger period than is allowed by law, would be absolutely void in its creation. But it does not follow from this, that every interest which has been created in that particular part of the fund is also void, if it is in the nature of a separate and distinct estate or interest therein. And as the revised statutes have not prohibited express trusts of personal property for any purposes which are le gal, it follows of course, that where personal estate is vested in trustees upon various trusts, some of which are valid and others void, the courts must sustain those which are legal and valid if they can be separated from those which are illegal and void.

In the present case, no material change in the disposition which the testator intended to make of his property will be produced by separating the unauthorized trusts relative to the house and lot in Market-street, and the power to lease his other real property, from the trust to convert such other real property into personalty and to invest the same with the other personal estate, upon the other valid trusts specified in the will.

As the equitable conversion of the real estate into personalty has reference to the death of the testator, if the rents and profits previous to the actual conversion are distributed equally among the five children, the three daughters must be allowed the interest on $6000 of their shares from the same time, as an equivalent for the value of the house and lot devised to the son ; and Ann must be allowed interest on .same sum, less the $1200 specified in the will. As between Ann and her husband, the rents of her share of the real estate, except those of the house and lot in Market-street, will belong to her, from the death of the testator, as a part of her separate estate, according to the intention of the testator as stated in his will.

A decree must therefore be entered, declaring the construction of the will accordingly ; and directing the executor to sell the real estate, except the Market-street house and lot and the house and lot devised to the son, and to invest the proceeds thereof according to the directions of the will; except the share of the personal estate and of the converted fund belonging to the complainant, which is to be paid to him absolutely. The costs of all parties are to be paid out of the principal of the personal property; so as to give the daughters the benefit, immediately, of all the income of their respective shares which has already accrued. And it must be referred to the injunction master in Albany, to take all proper accounts relative to the estate ; and authorizing the executors to pass their accounts annually before him, or his successor in office, upon due notice to the parties interested in such accounts, or to their solicitors. Liberty must also be given to any of the parties to apply to the court from time to time, upon like notice, for such other and further directions in the premises as may be necessary.