18 Barb. 467 | N.Y. Sup. Ct. | 1854
Where a trust, says thé statute, shall be expressed in the instrument creating the estate —which is the case in the present instance—every sale, conveyance, or other act of the trustees in' contravention of the trust, shall be absolutely void. And is not a mortgage, attended as it must be with a power of sale, an act contravening a trust
There is, however, another aspect of the Case which possibly may relieve the plaintiffs of a part of their difficulty. Mr. Cruger, should he wish to raise money to improve the property, may borrow on the security of a judgment lien, and so much of the rents as shall not be necessary for his support, will be liable to the claims of the judgment creditors. (Statute of Trusts, § 57.) Under the circumstances, were it not for a condition which will presently be considered, the court might—at all events, having jurisdiction, the decree would be valid— deferee the whole life income, with a very inconsiderable exception, to the -judgment creditors. Such a judgment and decree, covering the life interest of the father, fortified by a mortgage covering the reversion of the son, would, it seems to me, be ample security for the proposed loan.
In determining what portion of the rents and profits by way of annuity should be adjudged necessary for the support of the life beneficiary, a difficulty arises from the peculiar condition imposed by the settlement upon his right. The rents, it provides, shall be paid to Mr. Oruger during his life, he “ also during his life, and so long as he shall live, maintaining, bringing up, and educating the child and children, and lawful issue (meaning, I suppose, grandchildren) of said marriage, in a suitable manner, by and out of said rents, issues and profits.” Do such terms in such a case create a legal right in favor of the children and grandchildren 1 or do they merely attach a condition to the principal grant, a non-compliance with which works a forfeiture of the intended benefit ? If a forfeiture, then the son, on a refusal by the father, might immediately enter, and thus liberate the whole estate, and become sole tenant in fee, not in remainder, but in possession, for the object of the trust being in that case terminated, the estate in the trustees would by law immediately cease. But if the terms above quoted, instead of importing a mere condition, were intended to, and actually do, create a legal right in the children of the marriage, living at Oruger’s death, and the grandchildren who may afterwards be born daring Mr. Oruger’s life, a right which, if allowed, could be enforced in a court of equity, another question then arises,—Does the statute permit the creation of such interests ?
A trust, it says, may be created to receive rents and profits, and to apply them to the use of, or according to recent judicial decisions, to pay them to a person during the life of such person, or for a shorter period. How the maintaining, bringing up and educating of a person, if not by implication confined to his
On a resurvey of the whole ground, then, the conclusion would seem to be that the marriage settlement creates in the trustees an estate for the. life at least of Mr. Cruger, for his support and the support of all his descendants by his late wife, now born, or who may hereafter be born during his life; that neither the “ estate ” of the trustees, nor the “ interest,” as it is called, of the beneficiaries, can be “ assigned or in any manner disposed of,” except that “ the surplus of such rents and profits beyond the sum that may be necessary for the education and support of the person (or persons) for whose benefit the trust is created, shall (will) be liable in equity to the claims of the creditors of such person (or persons) in the same manner as other personal property which cannot be reached by an execution at law,” (1 R. S. 729,) and that the, only estate in the land now absolutely and directly alienable, is the remainder in fee, which on the death of Mrs, Cruger became defeasibly vested in. the son,
Mitchell, Roosevelt and Clerke, Justices.]