Bradley v. Amidon

10 Paige Ch. 235 | New York Court of Chancery | 1843

The Chancellor.

The counsel for the defendants does not appear to have called the attention of the vice chancellor to the fact that no decree could properly be made upon this bill, to which no person having any interest in the estate of the testator is a party, either as a complainant or defendant. The surrogate is not authorized by law to appoint a trustee, but merely to appoint a guardian of the estate of the infant. • Such guardian, therefore, is not authorized to file a bill in his own name, to obtain possession of the property of his infant wards ; but he must file it in the names of the infants, as their next friend. A decree made in this suit would not protect these defendants from further litigation, even with the infants themselves. This bill should therefore have been dismissed, upon the ground that it was filed by a sole complainant who had no interest whatever in the subject matter of the suit.

But as it will probably save the expense of a new suit, in the name of the infants by their next friend, to examine the merits of this case, I have looked into the will of the testator to see whether this court has the power to take the property, which the defendants hold in trust for these infants, out of the hands of the executors and trustees, for the purpose of placing it under the care of their general guardian.

If there was an absolute devise and bequest of one-third of the testator’s property, to such of the children of his daughter Electa Bradley as should be in esse at his death, there would be some ground for supposing that the testator only intended to provide for the care and protection of the infants’ share of the property until a guardian, of their estates, was appointed to take care of it for them. But the fact appears to have been overlooked, in this case, that the testator has not given to the infant children of the complainant any part of the capital of his estate, until they respectively arrive at the age of twenty-one ; and if they die before that time, without issue, the fund is given over to others. In such a case, if there was no trust clause in the will itself, the executors could not be required to pay over any part ofthe principal of the respective shares of the personal estate, to these legatees, or to their general guardian, while they were under the age of twenty-one. All that they could be required to do, in such a case, would be to keep the fund properly invested, and to pay over the income thereof for their support, until they respectively arrived at the age of twenty-one ; or that the fund should be brought into court and invested, under its direction, until the time of payment arrived ; and subject to the contingency mentioned in the will. (Phillips v. Annesley, 2 Atk. 58. Heath v. Perry, 3 Idem, 105, n. 1. Green v. Piggot, 1 Bro. C. C. 105.)

There are other difficulties in this case in the way of the complainant’s claim to the possession of the personal property in the hands of the executors. The bequest was not to such of the children of the testator’s daughter Electa as should be in esse at the time of his death ; but it was to such as she then had or should thereafter have. It cannot therefore be determined during the life of Mrs. Bradley, or at least until some of her children shall have attained the age of twenty-one years, what share of the fund will belong to each. For if she should have other children, either by the complainant or by any future husband, they may come in and claim a share of the property under this will. The will is inartificially drawn, and it is therefore somewhat doubtful whether the testator contemplated a distribution of this third of his property among the children of his daughter Electa, during her life, as they should respectively attain the age of twenty-one, or only upon their attaining that age after her death. Taking the whole will together, however, I think the first construction must be the true one. Though it appears to have been a part of the general intention of the testator to provide for the support of his daughter for life, out of the property, it is done in the general form of a charge upon the estate, in the hands of the devisees and legatees, after they shall respectively arrive at the age of twenty-one. And the trust to the executors, to receive the rents and profits and income of the property, and to apply so much thereof as may be necessary to her support, appears to be restricted, as to each share of the property, to the time when the owner of that share shall have attained the age of twenty-one. It is true this construction of the will would leave any children which she might have after the distribution of the property to those who had arrived at the age of twrenty-one, to look to those distributees for their portions thereof. But as to the real estate that would present no difficulty whatever, as it would be’ but the ordinary case of a vested estate in fee, subject to open and let in after born children to share therein. And as to the share of the personal estate to be paid over to the child who had attained the age of twenty-one, or who had died under age leaving issue, the court could direct it to be paid over to the legatee presumptively entitled to it, upon his giving security, to protect the contingent interests of afterborn children in that part of the fund. (See Webber v. Webber, 1 Sim. & Stu. Rep. 311.)

But, by the express terms of this will, the executors are to take upon themselves the management and direction of the property until the children of the testator’s daughter shall respectively attain the age of twenty-one, and from the rents and profits to provide for her support, as well as for the maintenance and education of her children who have not attained that age. This is a valid trust under the provisions of the revised statutes, and the legal title must vest in the trustees by implication, during the minorities of the legatees and devisees respectively, to enable such trustees to collect and receive the rents and profits and income of the property, and to apply them to the purposes of the trust in the meantime, and to accumulate the surplus, if any, for the benefit of those who are entitled thereto, during their respective minorities, as directed by the will.

It is difficult to say what the testator intended by that clause of the will in which he directs, that no part of the share or interest devised to the children of his daughter Electa shall go out of the hands and management of his executors until the children respectively shall have attained the age of twenty-one, or until a guardian or guardians shall be duly appointed according to law to manage the same. But as it appears from the answer that the complainant and his wife, at the time of making the will, in consequence of family difficulties, were living separate from each other, I am satisfied that the testator did not intend to destroy the trust he had created for her benefit in the previous clause of the will, nor to authorize the executors to pay over the capital of the fund to the guardians of the minor children then in esse, to the prejudice of the rights of afterborn children. The clause was probably inserted from over cautiousness, on the part of the scrivener who drew the will, to provide for a supposed termination of the trust in case the daughter should die during the minorities of any of her children. But whatever event the testator may have had in contemplation when he inserted this restrictive clause in his will, it cannot properly be construed into a direction to his executors to give over to the guardian of the infants, whenever one should be appointed, the whole of this third of the estate ; without taking any security whatever to refund it, or any. part of it, upon the happening of the contingencies contemplated by the will, or making any provision for the support of their mother out of the income of the property.

This decree, therefore, could not be sustained if the bill had been properly filed, in the name of the infants by their next friend. It must be reversed, and the complainant’s bill must be dismissed with costs, including the costs of the executors and trustees upon this appeal. And as the appellants have merely done their duty as faithful trustees, in resisting the claim made in this case, the necessary costs and expenses to which they hav ebeen put, and which they cannot collect from the respondent, they will have a right to retain out of the income of this third of the testator’s estate.

It may also be proper to suggest that the father is entitled to the guardianship and education of his children; and that while they continue under his care and protection, the executors, after providing for |he support of Mrs. Bradley, as directed by the will, should pay over to him, from time to time, so much of the.rents and profits and income of the estate, belonging to the infants, respectively, as may be necessary for their support and education ; taking his receipts therefor as such guardian.