83 N.Y.S. 964 | N.Y. Sup. Ct. | 1903
The plaintiff brings this action for the partition of certain lands of which his father died seized, and which are disposed of under the residuary clause of the latter’s will. That clause makes a valid suspension of the power of alienation, and, though the trust term thereby provided has not yet terminated, the plaintiff claims that he is seized and possessed of such an estate of inheritance as entitles him to maintain this action. The claim is that by statutory permission — rising superior to the expressed wish of the testator, the general rule that the postponement of division provided in a will prevents partition until the time appointed — this action is well brought.
The action is obviously founded on section 1532 of the Code which provides that where two or more persons hold, or are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life or for years, any one or more of them may maintain an action for the partition of the property. The action is not brought under section 1533, which makes similar provision where two or more persons hold a vested remainder or reversion, subject to the proviso that a sale should not be had in the absence of a duly executed consent in writing by the person or persons holding the particular estate or estates.
The plaintiff maintains that he .is presently seized in fee simple absolute of an undivided one-fifth part of the real property disposed of by the residuary clause. If he has not such an estate of inheritance he has no status to maintain this action and the complaint must be dismissed.
The plaintiff builds his fee as follows:
I am of the opinion that the release is ineffectual and that the plaintiff fails on both branches of his case; in other words he has no absolute vested remainder but merely one vested subject to being divested, and even if he has one that is indefeasible, his income in the trust estate is not such as to permit the execution of the release.
To take up the latter question first. The principle embodied in section 83 of the Real Property Law has undergone successive extension and limitation. The Revised Statutes (1 R. S. 730, § 63) originally provided that: “Ho person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created, are ■ assignable.” By chapter 452 of the Laws of 1893 this section was amended and enlarged by an addition that was not free from ambiguity, and which, so far as here applicable, provides that “ whenever the person beneficially interested in the whole or any part of the income of any trust * * * for receipt of the rents and profits of lands” should be or should thereafter become entitled “ to the remainder in the whole or any fart of the principal fund so held in trust ” it should be lawful for such person so beneficially interested in the whole or any part of the income of such trust estate to release to himself or the person presumptively
The important point to observe for our purpose is that the privilege was extended to a person beneficially interested in the whole or any part of the income. This amendment of section 63 was, however, found ambiguous and unsatisfactory, with the result that with the adoption of the Real Property Law (Laws of 1896, chap. 547) this section was limited by section 83 of that law, providing as follows: “ The right of a beneficiary of an express trust to receive rents and profits of real property and apply them to the use of any person, can not be transferred by assignment or otherwise; but the right and interest of the beneficiary of any other trust may be transferred. Whenever a beneficiary in a trust for the receipt of the rents and profits of real property is entitled to a remainder in the whole or a part of the principal fund so held in trust subject to his beneficial estate for a live or lives, or a shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”
It will be noted that while the transferability is extended from the one" case of the assignability of the rights in a trust for the payment of a sum of money in gross to “ any other trust,” the right to release is limited to the case of a beneficiary of an express trust for the receipt of rents and profits of real property. The point of difference, so far as here material, between the amended section 63 and this section being that whereas the former permitted the release, other conditions concurring, by a beneficiary of the whole or any part of the income, section 83 of the Real Property Law withdrew the privilege of the beneficiary of a part only, leaving the right open solely to a beneficiary of all the income. This construction of the change by section 83 has but recently received judicial sanction. In Matter of United
As the testator died on December 9, 1897, and as his will, therefore, took effect when the Act of 1896, construed and applied in Matter of United States Trust Co., was in force, its provisions, and not those of the act of 1893 are controlling in the disposition of the question of the plaintiff’s right to release; and as the plaintiff’s interest was concededly an interest only in part of the income, the instrmnent he executed to himself Mas ineffectual for any purpose.
Although it has no present applicability to the trust here
As a result of the view I take of the release it becomes unnecessary to dwell at length on the construction to be given to the plaintiff’s interest under his father’s will. I revert to it briefly for, unless he has an indefeasible vested remainder, he cannot maintain this action even though the release in question be held good.
The residuary clause of the will reads as follows: “All the rest residue and remainder of my estate both real and personal I give, bequeath and devise unto my executors hereinafter named in Trust however until my grandchild, Valen-, tine, son of my daughter Susan, wife of Arthur E. Helm-rich, shall become 21 years of age; in ease my said grandchild Valentine should die before he becomes 21 years of age I give, bequeath and devise the same unto my said executors in Trust, to hold the same until the my grandchild Christine daughter of my daughter Christine wife of Wallace Straiton shall become 21 years of age, when either of my grandchildren shall have attained their majority as above stated, or in case both should die before attaining their majority, I give bequeath and devise all my said residuary estate unto all of my children absolutely and forever the same to be divided equally between them, should any of my children have died leaving issue, the issue then to take the share of the parents;
“And I further direct my said executors to collect all the rents and profits of all my real estate until my grandchild as hereinabove mentioned shall become twenty-one years, and divide the same, after deducting all necessary charges,
'Were this a colorless will many of the technical rules cited by the plaintiff might find application. But where the intent is clear, that becomes the single rule, so long as no principle of law is infringed. While the law unequivocally favors the absolute vesting of the estate at the earliest possible moment, there is no such inviolable sanctity to the rule, as to compel the perversion of the testator’s intent.
If technical rules are to be applied, that laid down im Lyons v. Ostrander, 167 N. Y. 135, would seem quite con-trolling against the plaintiff’s contention. The rule was there reiterated that words' of survivorship in a will refer to-the time of the testator’s death only in the case of an absolute gift to one, and in case of his death to another, and that it has no application where there is an intervening estate, as here, in the trustees during the specified minority. The plaintiff’s attempt to distinguish that case while ingenious is not successful. The rule is not limited to cases of bequest of personal property. Whatever its origin may have been, the decisions of the highest court of .this State commit us to doctrine that covers devises as well. Mor is this a ease like Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 id. 103; Ogden v. Ogden, 40 Misc. Rep. 473, where the fact was seized upon as corroborative of intent, that the specific share of corpus out of which the specific share of the income arose was thereafter given to the beneficiary of the income, a circumstance which is ordinarily given great weight
Inasmuch as the complaint must be dismissed it becomes unnecessary to consider the issue raised by the trustee in bankruptcy, or the question of the widow’s right to dower.
Judgment is directed dismissing the complaint.