102 N.Y.S. 258 | N.Y. App. Div. | 1907
The defendants demurred to the complaint with success at first, but this court reversed the interlocutory judgment. They pleaded anew and have succeeded upon the trial before the referee. ( The opinion of the court upon the first appeal, written by Willabd Bartlett, J., states the preliminary facts and defines the issues. (102 App. Div. 377.) The opinion of the learned referee upon the trial also lightens my labor.
The scheme of the testator Robert S. Cushman dealt with his three sons alike. Generally speaking, it gave the residuary estate to his executors in trust to pay the income to the sons. At a fixed period, if any of the sons, in the judgment of the executors, showed certain qualities, it empowered the executors to pay over the corpus to him, otherwise it continued the trust. If, however, at any time subsequent thereto, any son who had not been qualified at the fixed period should in the judgment of the executors reveal those qualities, it then empowered the executors to pay over the corpus, otherwise it continued the trust. The plaintiff does not contend that the son Thomas (with whom alone we are dealing)_ was qualified to receive the corpus at the fixed period, but that about 10 years thereafter (while the executor was alive) and ever after, Thomas became qualified, not only in fact, but also in the judgment of the executor, within the purview of the scheme to receive the corpus. The suit, in brief, is to recover the corpus and for an accounting as to it.-
There is no proof whatever against the finding that this son never so reformed his habits and so conducted himself as rendered him in the judgment of the executor of the said will, Paul Cushman, competent to manage and properly use and dispose of the share of his estate.
Inasmuch as the testator had constituted the executors the judges of such competency, it was not enough for the plaintiff to establish to the satisfaction of the court that this son had .so reformed and had so conducted himself as to be competent. If this sufficed, then
The point is made first in this court that the trust made by the
It is probably a sufficient answer to the suggestion of the respondent that the various proceedings before the surrogate were not an •estoppel so far as the question of the validity of the trust is con
I.am of opinion that the one-third of the estate never vested in this son. The scheme of the testator was not to defer the time of possession, but to withhold possession until the son was twenty-five years old, when, if he had reformed,, and was competent, and only in that event, he was to receive the corpus, and likewise is the provision for á subsequent gift thereof. It was an estate in expectancy, a future estate,,and it was contingent because it was uncertain", whether the son would, at the time fixed for possible enjoyment* or at any period thereafter, be so reformed and so competent as to entitle him to the estate under the discretionary power of decision conferred on the executors. (4 Kent’s Comm. [14th ed.} *206.) It is contingent in that the event on which it is limited remains uncertain.. (Real Prop. Law [Laws of 1896, chap. 547], § 30, founded on 1 R. S. 723, § 13.). Because- this son is he who shall take if the condition be met* it does not follow that the person- is certain, It is not Thomas who can take, but Thomas reformed and
I am of opinion that the power of judgment as to the fulfillment of the condition was lodged in Paul Cushman as executor. (Hill on Trustees, [4th Am. ed.] p. *489.) The will and codicil are to be construed as but one instrument. The will named two individuals' as executors, and the codicil substituted two different individuals. But there is nothing to indicate that the testator cast any duty upon the individuals first named other than perforce of their nomination to the executorships, and there is nothing to indicate that he intended to withhold from the second nominees any of the powers conferred upon the first nominees. And I agree with the learned referee that Paul Cushman alone can exercise the power. (Crawford v. Forshaw, L. R. 2 Ch. Div. [1891] 261; Leggett v. Hunter, 191 N. Y. 456.) If the trust is annexed to the office of executor, then the resignation of the latter office carries the relinquishment of the former place. (11 Am. & Eng. Ency. of Law [2d ed.], 827.) The consent of the acting executor was only necessary. (30 Am. & Eng. Ency. of Law [2d ed.], 805. See, too, 1 Williams Exrs. [7th Am. ed.] 335 ; Schouler Ex. [3d*ed.] § 49.)
The judgment is affirmed, with costs.
Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.