60 Barb. 9 | N.Y. Sup. Ct. | 1870
It is insisted by counsel in support o.f the demurrer, that the court has no't jurisdiction of the subject matter of the action. The claim is put upon the ground that the trust fund is in the State of Connecticut, all the defendants reside there, and on the death of the former trustee, in that State, the title to the trust fund which was then in his possession' passed to his personal representatives, according to the rule of the common law, which it is to be presumed was then in force in that State, there being no averment to the contrary, in the complaint. Or, in other words, the property is now in the hands of a trustee in a foreign State, duly appointed by law, and this court has no authority to appoint another trustee, or to compel the present trustee to deliver up the fund. But the principal cestui que trust resides in this State •, the trustee who died in Connecticut, resided in this State when he was appointed; he had the trust fund here, at the time, and he partly executed the trust here. The cestui que trust is an infant, and needs the fund for his support. Under these circumstances the power of this court to appoint a new trustee within its owrn territorial jurisdiction cannot
It is also urged by the demurring parties, that the appointment of the plaintiff as trustee was void, for several reasons, among which are the following: That he was appointed on petition merely, and not by bill; that the cestui que trust was not a party to the proceeding; and that the other persons contingently interested in the fund were not made parties. It is a sufficient answer to these several points, to say that they are mere irregularities, at the most,
There are, however, two other points urged by the defendants’ counsel, which go to the validity of the appoint-ment, and which deserve a more particular consideration. The first is, that the statute devolving a trust upon the court, on the dedth of a surviving trustee, and authorizing the appointment of a new trustee, is not applicable to a trust of personal property only, which is the nature of the trust in the present case. (1 R. S. 730, § 68.) It is said the Court of Appeals has so decided, and the case of Bunn v. Vaughan, (3 Keyes, 345,) is cited. The report of that case is very meagre. So statement of facts is given, and there is no-evidence that the point now under consideration was before the court. The only authorities cited by the member of 'the court who wrote the opinion, are Kane v. Gott, (24 Wend. 641,) and Savage v. Burnham, (17 N. Y. 561.) In the first of these cases, the question was whether certain trusts and limitations of personal property were valid, and it was held that the doctrine of trusts and limitations of real estate had nothing to do with it, further than the Revised Statutes may have expressly brought personal property to the same footing. The question whether section 68, above cited, applied to trusts of personal property did not arise, and was not considered. Savage v. Burnham reiterates the same general doctrine. Within the rule laid down by these cases, section 68, above, applies to trusts of personal estate, for they are included in its provisions, by proper construction, if not in express terms. The language is: “ Upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pats to his personal representatives,” &c.
These words are aptly used to embrace as well personal estates which pass to the executor or administrator, as real
The other ground on which it is insisted the appointment is void, is, that it only purports to clothe the trustee with part of the powers, and to charge him with part of the duties, which the due execution of the trust requires. The will creates a trust primarily in favor of Homer Collins, and contingently in favor of others. The appointment authorizes the trustee vto execute the trusts, so far as they relate to the said Homer Collins. It is true, the trust cannot be divided. There cannot be at the same time two independent -trustees, each equally entitled to the possession of the trust fund. But upon the facts stated in-the complaint, the entire beneficial estate is now vested in Homer Collins. He is the sole oestv/i que trust, and the appointment in its present form covers the entire trust, and entitles the trustee to the whole fund. The trust is created by will, and consists of a bequest to Helson Collins, the father of Homer, as trustee, first for the use and benefit of Homer, during his minority, and on his attaining the age of twenty-one years, to go to him absolutely; second, in case he shall die during minority, leaving a brother or sister, child of said Helson, the residue to go to them; and third, in case he and such brother or sister shall die during minority, the residue to go to such persons as ifelson shall appoint by will, and in default of such appointment, to the heirs of Helson-Collins. Helson died in 1861, intestate, without having made any appointment, as provided by the bequest. Homer is his only surviving child. Thus Homer is entitled not only to a present estate for his life, under the will, but also to the contingent remainder as the sole heir of Nelson Collins; and the two estates having been united in the same person,-on the death of Nelson Collins, the latter estate was then extinguished. (In the matter of Dekay, 4 Paige, 403.)
The demurrer is overruled, with leave to the defendants to answer in twenty days, on payment of costs of - ' demurrer.
James C. Smith, Justice.]
