47 N.Y.S. 661 | N.Y. App. Div. | 1897
The action was founded upon a mortgage made by the defendants Sarah A. Storm and Harmin V. Storm to George H. Roberts, the plaintiff, on the premises in question in June, 1890, to secure the payment of $3,600. Harmin V. Storm was the beneficiary of the trust hereinafter mentioned. He had no estate in the land. (1 R. S. 729, § 60.) The interest of Sarah A. Storm was. derived from a deed made by Jacob Yandehberg, the surviving executor of and trustee of and under the will of Sarah Storm, deceased, to her, of date June 19, 1889. By her will she devised the premises to the trustees named or the survivor of them “ in trust to receive the rents, income and profits thereof, and apply the same to the use ” of her son, Harmin V. Storm, during his life, and subject to the trust and power of sale she devised the premises “ to the children or child of said Harmin V. Storm, if any, living at his death, and the descendants of any such child then deceased as shall have left descendants then living. Such descendants of each deceased child to take only the share their deceased parent would have taken if living.” The testatrix in like manner devised certain other real property to such trustees in trust, to receive and apply the income to her other son, Peter L. Storm, and devised the remainder to his descendants. Then, if either of those sons should die leaving no descendants, she devised the entire estates in remainder of the properties to the descendants of the other son. And she gave to the trustees or the survivor of them full power to sell and convey any or all the real property within the trust, during its continuance, for the purpose of changing the nature of the investment.
There is, however, another question which relates to the standing of Harmin V. Storm in his relation as beneficiary to the trust. It is said that he requested to be made the conveyance which was made by the trustee to his wife, and he joined with his children in the execution of the instruments before mentioned. But, having no estate in the property, he could not assign or dispose of his interest in the income, rents and profits which he as the beneficiary of' the trust was entitled to receive. (1 R. S. 730, § 63; Noyes v. Blakeman, 6 N. Y. 567.) How then could he bar or estop himself from asserting his right to require the execution of the trust in his behalf by any voluntary act on his part ? He was made a party defendant in the foreclosure action, and although the judgment does not appear in the appeal book it may be assumed that by it he was, in terms, barred and foreclosed of all right, claim, lien and equity of redemption in the mortgaged premises. This did not include his relation
• • The order should^ therefore, be reversed, and.motion granted. •
All concurred.
Order reversed and motion " granted, ■ with ten dollars costs and disbursements. ■