51 Barb. 552 | N.Y. Sup. Ct. | 1868
The learned judge was right, I think, in holding at special term, as matter of law, that the plaintiffs became entitled absolutely to one half the fund of $1200, given to the executors in trust, upon the death of the widow of the testator. The defendants controvert this conclusion of law, and contend that by the failure of the widow to elect to accept the provisions made' for her, in the will, in lieu of dower, in her lifetime, she having died before accepting, and before the period when she would be deemed in law to have accepted, the whole provision failed, and the trust, and trust fund with it, and no such fund ever vested in the executors. This is insisted, upon for the purpose of sustaining the judgment in case it should be determined that the plaintiffs’ claim is not barred by the statute of limitations. It is in this view
It is true, as the defendants contend, that so far as the widow is concerned, this provision, with all the other provisions of the will in her favor, was provisional, and conditioned upon her acceptance of them in lieu of her dower right. It is also true, as found by the judge, as matter of fact, that the widow died within about a month after the decease of the testator, without making her election to accept the provisions of the will in her favor, and without the selection of a dwelling house, in the purchase of which the fund was to be invested by the terms of the will. But it does not follow that this state of facts operated to divest the plaintiffs of all right and title to this fund, and cast the fund back into the mass of the funds of the estate. The plaintiffs and the other society, were the ultimate beneficiaries, or legatees of this fund, and were entitled to it absolutely, each to one half thereof, in its own right, the moment the right to the intermediate, or temporary use and enjoyment became extinguished, and the executors, if the title ever vested in them, took and held it for their benefit, as well as for the benefit of the
The question then arises whether the plaintiffs’ claim is not barred by the statute. It is obvious that the widow of the testator, having died without making her election to accept the provisions of the will in her favor, and before she could be deemed in- law to have accepted the same, never became a beneficiary in fact or in law, of the trust fund intended for her benefit. The relation of trustees, and cestui que trust between her and the executors, the foundation of which was laid in the will, was never formed and matured, and no claims on the one side, or duties and obligations or the other, belonging to that relation, ever sprung up or existed between the parties. In that the contemplated trust, so far as she was concerned, never went into effect, and the laudable designs and intentions of the testator towards her, were frustrated, and rendered altogether unavailing by her demise before electing to become a beneficiary of the proffered trust fund. This removed all obstacles to the immediate possession and enjoyment of one half the fund by the plaintiffs. The executors, then, held it for the plaintiffs solely, and had no duty to perform in regard to it, except to pay it over. In fact the widow died before the will was admitted to probate, and all the provisions of the will, by which an active and technical trust was intended to be created, had been rendered abortive, before the funds actually came to the hands of the defendants. The trust intended never having gone into operation, or had a legal existence, there never was any technical trust in favor of the plaintiffs, and no relation of trustee and cestui que trust of that character between the plaintiffs and the defendants. The relation was simply that of executor and legatee, and the trust was of that character only. The right of the plaintiffs to the half of the contemplated fund, was a vested right from the beginning, or in any event at the death of the widow,
E. D. Smith, Johnson and J. C. Smith, Justices.]