Welch v. Allen

21 Wend. 147

• Court: New York Supreme Court
• Decided: May 15, 1839
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

Assuming that Tallmadge took a fee, which I think he did, such estate being necessary to enable him to fulfill the object of the trust, that on his .death it descended to his. heirs or passed under his will, as the case may be, after the death of John Welch, and that the estate was not sold as directed in the trust deed, the trust became wholly nominal. No sale was contemplated after the death of John Welch ; the reason for directing it was to obtain the means of support for him and his family during his lifetime, and on his death the surplus was to go absolutely to his heirs: the estate not having been sold, must take the same direction. Besides : the act and the letters patent pursuant thereto, direct that Tallmadge shall hold in trust for John Welch, his heirs, &c.

The trust therefore being merely nominal in 1830, when the revised statutes went into operation, it became executed in the cestui que trust by virtue of the 47th § of the artide on uses and) trusts, 1 R. S. 727, and consequently the plaintiff holds the legal title, and is entitled to maintain the .action.

New trial granted.