45 N.Y.S. 398 | N.Y. App. Div. | 1897
The will of Ethelinda V. Allen, mother of the plaintiff, created the defendant, the Farmers’ Loan and Trust Company, a trustee of certain property, for the following purpose: “To collect and receive the interest and income thereon from time to time, and pay over the same semi-annually to and for the support and maintenance of Annie Odell Allen (wife of my son Harry Allen) and of her said husband Harry Allen, and the support and maintenance and education of the children of the said Harry Allen for and during the natural life of the said Annie Odell Allen, the same to be paid to her from time to time, and upon her separate receipt, and upon her death, in case her said husband survives her, then the said trustee or its successor is to have and to hold * * * the said .bonds- or other securities in trust, and to collect and receive the interest and income thereon, from time to time, arid pay over and apply the same semi-annually to and for the support and maintenance of my said son Harry Allen and his family, and the support, maintenance and education of his children for and during his natural life, and upon his death the said trustee or its successors shall pay over the said principal sum, whether invested in bonds or' other securities, with, any accumulations of interest thereon equally, share and share alike,, to the lawful issue (if any) of my said son Harry Allen, and to the issue (if anj)per stirpes of such as shall have died.” The will further provided that if the said Annie Odell Allen should survive her husband and remarry, she should cease to receive any interest or derive any benefit from the trust fund. In such event the principal sum was to be paid over to the lawful issue of the said Harry Allen. The will further provided that neither the said Annie or the son Harry, or either of them, “ have the right or power to anticipate, assign, charge or in any manner encumber the said interest or income
Upon the death of the said' Etheliiida Y. Allen, Harry and Annie Allen were living together as husband and wife.' The issue of the marriage consisted of three children, two of whom are presently married, and the other, an infant, now resides with her mother. The parties continued to live together as husband and wife, the latter receiving the income from the trust fund and applying it to the maintenance of herself, her husband and her children. In February,, 1893, Annie Odell Allen commenced an action against , Harry Allen to obtain a divorce a vinculo. The complaint in that action was in the usual form appropriate to such actions. Its averments were the marriage of the parties, the residence of the plaintiff, the commission by the defendant of several acts of adultery specifi- ■ cally alleged; that such acts were committed without the consent, connivance,, privity or procurement of the plaintiff; that five years had not elapsed since the fact was discovered, and that plaintiff had not cohabited with the defendant since such discovery. The issue of the marriage was alleged and the demand for judgment was that the bonds of matrimony between the plaintiff and.defendant be dissolved, that the custody of the minor children be awarded to the plaintiff, and that a reasonable provision for the support of the plaintiff and her said children be made out of the property of the defendant and for the costs .of the action... There was no allegation in relation to the trust fund or the income therefrom and no demand was made for any adjudication by the court in respect thereto.
The defendant answered by admitting the marriage, the issue thereof, and denying all the otlier allegations of the complaint. The cause being at issue; was. referred to a referee for trial.. The referee, made his report therein, finding the admitted allegations of the complaint; also .that the defendant "was guilty of . an act of .adultery.
This action seeks to reach the trust fund and have the plaintiff’s right and interest therein determined and have the same applied to plaintiff’s maintenance.
The court below, in the conclusions reached by it, proceeded mainly upon two grounds: First, that the trust fund was set apart for the maintenance of the plaintiff in connection with the family; that it did not create a separate divisible interest in any of the beneficiaries named, but was paid to the wife for the support of the' family, whose existence it was contemplated would continue; that as the defendant, by his own act, placed himself beyond the pale of the family relation, he has made it impossible for him to share in the benefits derived from the trust fund. Second, that the decree is to be treated as an- award of alimony and that the plaintiff, having appeared by attorney and not opposing confirmation of the report, is to be treated as having consented thereto. We do not think that the terms of the trust will bear the construction placed upon it by the court below. The language of the trust is absolute for the disposition • of the income to' the support of the wife, the husband and the children, and the rights of each therein are made equal to the extent of support and maintenance, and each
The action for divorce did not embrace within its issues any question relating either directly or remotely to the rights of plaintiff in and to the trust estate. His rights therein could not, therefore, be made the subject of adjudication and disposition by the court. This point was squarely decided by the Court of Appeals in Campbell v. Consalus (25 N. Y. 613), where the court say, in speaking of the.legal effect of a judgment: “ To make such proceedings and judgment thus conclusive it should have appeared not only that the amount due on the mortgage was litigated, and found by the referees in such prior action, but it should also have appeared, by the record of the judgment in such prior action, that the amount due on the mortgage was put in issue by the pleadings in such prior action. * * * Even an agreement between the parties,, that matters foreign to the pleadings shall be given in evidence and decided by the verdict of a jury, will not, it seems, enlarge the operation of .a judgment entered on such verdict by way of estoppel.” The doctrine of this case is clearly recognized and has been uniformly applied whenever the question has arisen. (Stannard v. Hubbell, 123 N. Y. 520; Shaw v. Broadbent, 129 id. 114.) The issues presented in the action for divorce were as foreign to an adjudication upon the rights of the plaintiff in and to the trust fund created by the will of his mother as could well be imagined. ' There was nothing therein which could, by any stretch of judicial power, embrace the right to adjudicate upon this trust provision. The court was clearly without jurisdiction of the subject-matter. The language used by Mr, Justice Brown in Clapp v. McCabe (84 Hun, 388) is peculiarly appropriate
The record does not show that the plaintiff appeared before the referee in the divorce action, nor does anything appear .which, in the slightest degree, conferred any power upon the. referee to adjudicate or report upon the trust estate or the right, of the plaintiff therein. The order of reference only empowered him “to hear and determine this action and the issues therein, and to report thereon to this court.” There was not even a reference in the issues to the trust estate or anything else which conferred upon the referee. the extraordinary authority which he assumed, to exercise.' There was no consent that he determine that question. ..If the appearance of the attorneys for the defendant upon the motion to eonfirm'be construed as a consent to the confirmation of the report, still such consent . could not be construed beyond authority to confirm and enter a proper judgment thereon within the issues and the power of the court. ' It could not operate to confer consent upon. the court to render a judgment which it was without jurisdiction-to render and which up to that moment had been entirely foreign to the subject-matter of the action. Such a conclusion' is without the sanction of authority and is opposed to reason. ■ . ■
The judgment should be reversed and a new trial granted.
All concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.