113 N.Y.S. 655 | N.Y. Sup. Ct. | 1908
On May 1, 1890, the defendant Maria Wyckoff, as the sole surviving executrix and trustee under the will of her deceased husband, Henry L. Wyckoff, executed and delivered to Edward F. Linton a deed reciting the power and authority given to her by the will, and conveying five undivided sixteenths of a tract of land in East New York, part of the. real estate of which Ferdinand L. Wyckoff died seised. The consideration was $54,063.50. At the same time the owners of the remaining eleven-sixteenths of the property, together with Sarah Wyckoff, who owned a life estate in all the land, conveyed their interest to Mr. Linton, the transaction having been brought about by a contract in which all the owners, including
“I, Henry L. Wyckoff, of the town of New Lots in the County of Kings and State of New York, do make, publish and declare my last will and testament to be as follows: First: I give to my wife, Maria Wyckoff in lieu of dower, the use and income of all my real and personal property to be paid to her by my executors so long as she shall remain my widow.
“Second.—On the death or remarriage of my wife, I give all my property real and personal which I may own, or be entitled to or interested in at my decease in equal portions to my children then living and the issue of such as may have died, such issue to take the share the parent would take if living.
“Third.—I give and devise all my real and personal estate of whatever.nature or kind to my wife, Maria Wyckoff, the executrix and to my brother, Jacob S. Wyckoff, the executor of this my-last will and testament hereinafter nominated and appointed in trust for the payment of my just debts and the legacies hereinbefore specified with full, absolute and complete power and authority to such of them as may qualify and to the survivor of them to grant, sell, convey mortgage, lease or exchange, all or any parts of my real estate, at public or private sale at such time or times and upon such terms and in such manner as to them shall seem meet.
“Lastly.—I do hereby nominate and appoint my wife, Maria Wyckoff, to be the executrix and my brother, Jacob S. Wyckoff, to be the executor of this my last will and testament hereby revoking all former wills by me made.
“In witness whereof, I the said Henry L. Wyckoff have hereunto set my hand and seal this 10th day of February A. D. one thousand eight hundred and seventy four. Henry L. Wyckoff. [L. S.]”
Mrs. Wyckoff and her coexecutor, Jacob S. Wyckoff, qualified and. entered upon the performance of their duties. Three years afterward Jacob died. Thereafter, and up to the present day, Mrs. Wyckoff has been the sole surviving executrix and trustee under the will, and she has acted in all matters concerning the estate and its administration. The land, as already stated, was farm land, unimproved and producing no income, and, in addition, there was a life estate between Mrs. Wyckoff and any enjoyment of income, had there been any. She testified that at first she did not want to sell, but later she concluded to do- so, because, she says, “I will get something from it that I might not be able, living for a long time, to get anything, and they couldn’t sell unless I signed off.” 1 The consideration was paid, so far as the estate of Henry Wyckoff was concerned, by a check for $4,962.50, and the execution and delivery of a purchase-money mortgage for $50,:000, due in 10 years, with provision for the release of lots to be made from time1 to time as the same were sold, on receiving payments on account. In 1-890, when the conveyance was made, her son, the defendant Abraham Wyckoff, was about 20 years of age. He'lived
On the facts in this case, as disclosed by the evidence, the conceded good faith of the transaction, the sufficiency of the price paid for the land, the acquiescence of the defendants in the results obtained for 17 years, their personal knowledge of the development of the property and the expenditure of money thereon, their knowledge of the circumstances under which the present owners, principally industrious and saving people of moderate means, have established their homes on the land, on the faith of the will of Henry L. Wyckoff and the action of his trustees, and having the consequences of the success of the defendants’ demand in view and the ruin it would cause to an innocent community, it would be very unfortunate if a court of equity and good conscience is powerless to prevent such a result. I think the defendants cannot obtain such an unjust profit. In the first place, I think a valid trust was created by the will of Henry L. Wyckoff, and that the property is devised to the executors to hold the same until the death or remarriage of the widow, paying her the rents and profits. I do not agree with the plaintiff that the deed is invalid, or that the will creates simply a “power in trust.” It is true that the devise is not directly to trustees as such, and that the testator uses the language, “I give to my wife, Maria Wyckoff, in lieu of dower, the use and income of all my real and personal property,” but this is followed by, “so long as she shall remain my widow.” It is apparent that the testator intended that the executors, as trustees, should be empowered to receive the rents and profits, and it is equally apparent that the remainder goes to persons other than the beneficiary of the life estate. It is not only convenient and advantageous, but it is the clear intention of the testator, that the executors, as trustees, should be empowered to manage the property during the life of the widow or until her remarriage, preserving it for the remaindermen. -And there is a direct devise of the estate to the executors in the third paragraph of the will in trust. The devise is not open to the objection that it is a “passive trust,” as was the case in Jacoby v. Jacoby, 188 N. Y. 124, 80 N. E. 676. The beneficiary, during the life estate, is not the remainderman, and in the case at bar the trust estate is devised to two trustees, not the widow alone. The cases cited by the learned counsel for the plaintiff (Kinnier v. Rogers, 42 N. Y. 531; Denison v. Denison, 103 App. Div. 528, 86 N. Y. Supp. 604, 93 N. Y. Supp. 1128; Downing v. Marshall, 23 N. Y. 380, 80 Am. Dec. 290; Clift v. Moses, 116 N. Y. 144, 22 N. E. 393) are distinguishable from the case at bar for the reasons above referred to. In my opinion this is not a "power in trust,” but a valid trust recognized by the statute (Real Property Law [Laws 1896, p. 571, c. 547] § 76, subd. 3), and coupled with a power (Robert v. Corning, 89 N. Y. 237; Steinhardt v. Cunningham, 130 N. Y. 292, 29 N. E. 100). The deed executed by the widow, as sole surviving executrix and trustee, on May 1, 1890, was, in my opinion, valid, and conveyed the fee title to the premises therein described.
“It does not follow that her trust estate in the corpus of the property is in any manner destroyed, or that there is any less a necessity for its existence. She can be trustee for the heirs, and that trust ranges over the whole estate for the purpose of its management and disposition.”
In the case at bar, it could never be said that Mrs. Wyckoff’s equitable estate was merged in the legal estate. What legal estate? There is a marked difference between the estate in remainder, devised to the child of the testator, and the beneficial interest in the income devised
But in addition to the confirmation of his title conveyed by the deed, the plaintiff asks a judgment determining the invalidity of the claims asserted by the defendants, and barring them, and those claiming finder them, from interest in the property. While such adjudication is not necessary to the decision that the deed of 1890 was a valid execution of the power granted to the trustees in the will, still, in view of the character and extent of the property affected, the diversity of ownership, the large amount involved, and the importance of settling this title, not only as to the defendants, but as to those claiming under them, whether unborn children or heirs at law, I think it is proper to inquire whether equity can grant such a judgment in this action and whether such judgment will be effective.
If it may be asserted that, as to any part of the corpus of the estate devised, the interests of the trustee were identical, or that the failure on the part of the surviving trustee to apply for the appointment of a successor to her deceased co-trustee in any way invalidates the conveyance, assertions which, I think, cannot be sustained, this case calls for the interposition of a court of equity to see that “that is done which ought to be done.” The bona fides of the transaction is not questioned. The defendants, mother and son, have remained silent for 17 years, enjoying the results of the conveyance, using the money, and practically aiding and inviting innocent investors to rely on their deed by their continued releases to individual purchasers. The total outlay, and the wonderful development in that part of the borough of Brooklyn, brings the total investment made on the faith of the trustee’s action in 1890 to over $2,000,000. The disaster and ruin which would result to hundreds of innocent people if defendants are to succeed in disavowing the deed of 1890 is inconceivable. If a court of
“I have looked at all the cases I can to find on what principle this court goes in supplying a defect and altering the legal right. It is this: Whenever a man having a power over an estate, whether ownership or not, in discharge of moral or natural obligations, shows an intention to execute such power, the court will operate upon the conscience of the heir to make him perfect this intention.”
In Robert’s Widow v. Stanton, 2 Munf. 129, 138, 139, 5 Am. Dec. 463, one of the Virginia cases in the early part of the last century, the decision as given in the headnote is:
“Where one trustee only had conveyed under a power required to be executed by all, Tucker, J., was of opinion that, as there was a want of competency in the person acting to execute the trust except in connection with the other, it was not a case in which chancery would relieve on the ground of aiding the defective execution of a power, but Fleming, J., considered it was a case in which a power had been imperfectly executed, and that, in favor of a purchaser for a valuable consideration, equity would supply the defect, and the latter view appears to be correct.”
Judge Story says:
“In no case will equity interfere where there has been a nonexecution of a power as contradistinguished from a trust, for if a trust be coupled with a power, there the trust will be enforced, notwithstanding the force of the power does not execute it. But if there be a defective execution or attempt at execution of a mere power, there equity will interfere and supply the defect, not universally indeed, but in favor of parties for whom the person intrusted with the execution of the power is under a moral or legal obligation to provide by an execution of the power. Thus such a defective execution will be aided in favor of persons standing upon a valuable or meritorious consideration, such as a bona fide purchaser for value. * * * Where a party undertakes to execute a power, but, by mistake, does it imperfectly, equity will interfere to carry his very intentions into effect, and that, too, in favor of those who are peculiarly within its protective favor, such as purchasers for value always are.” 1 Story, Equity Jurisprudence, 184.
To the same effect are the cases cited in 2 Pomeroy, Equity Jurisprudence, § 589. And Bispham says:
“Equity looks upon that as done which ought to be done. For the purpose of reaching exact justice, equity will consider that parties have performed certain duties which they ought in justice to fulfill. When chancery interposes to compel performance of an act which has been covenanted to be performed, it always treats the subject as if it had been performed at the time contracted. The act which chancery desires to be done is the same act as would have existed had it been done when it was agreed to be done.” Bispham’s Equity, 70.
I think that, if necessary, equity would take upon itself the execution of this trust, if it had not been already executed, and that the ob
Again, as between the plaintiff and the defendants in their individual capacity, the strongest equities favor the plaintiff. Certainly they are estopped as individuals from questioning the validity of the conveyance. And I think they represent not only themselves, but those that come, after them as well. I think Abraham Wyclcoff became seised of a vested remainder in this property at the time of his father’s death. The statute provides that future estates are vested “where there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate.” They are contingent while the person to whom, or the event upon which, they are limited to take effect, remains uncertain. Real Property Law (Laws 1896, p. 564, c. 547) § 30. Abraham Wyckoff was living at the date of his father’s death, and “the conditions of the test as to the vesting of a future estate in remainder, were satisfied, inasmuch as there was an absolute gift to designated persons then in existence, upon the termination of a precedent estate which might only be defeated by the happening of a contingency provided for in the will. The contingency did not affect the vesting of the interest given. It was a possible event provided for by the testator which should operate to divest those interests. It was not a gift limited to take effect upon an uncertain event. It was a gift which the uncertain event might' chance to defeat.” Stringer v. Young, 191 N. Y. 157, 83 N. E. 690.
The Court of Appeals in the Stringer Case affirmed a decision of the Appellate Division in this department (Stringer v. Barker, 110 App. Div. 37, 96 N. Y. Supp. 1052) in which Mr. Justice Jenlcs, writing for the court, cites Moore v. Littel, 41 N. Y. 66-76, where Judge Woodruff said of the statute (1 Rev. St. [1st Ed.] p. 722 et seq. pt. 2, c. 1, tit. 2) which has been revised in the provisions of the real property law:
“I read, this language in its ordinary and natural signification, and if you can point to a human being and say as to him, ‘That man or woman, by virtue of a grant in remainder, would have an immediate right to the possession of certain lands if the precedent estate of another therein should now cease,’ then the statute says he or she has a vested remainder.”
If we test Abraham Wyckoff’s interest by these standards, I think it is apparent that he has a vested remainder in the estate divided by the will of his father.
What was the intention of the testator? On his death the legal and equitable title and the beneficial interest vested in some one. The will was made in 1874. At that time the testator had one son, the defendant Abraham Wyckoff, about 4 years of age, and he had no other children at the date of his death in 1879. Did he intend to disinherit his only child ? The second clause of the will reads:
“On the death or remarriage of my wife, I give all my property, real and personal, which I may own or be entitled to or interested in at my decease, in equal portions, to my children then living and the issue of such as may have died, such issue to take the share the parent would take, if living.”
And he gives his property to his executors in trust for the payment of his debts “and the legacies hereinbefore specified.” The only “legacies” were the use and income devised to the wi'fe and the remainder to the children.
Why should we construe this will as indicating an intention to disinherit the only son, then 4 years of age ? The cases are not in harmony, but, applying the general principles and rules on construction, a remainder is not to be considered as contingent in any case where it may fairly be construed to be vested, since the law favors the vesting of estates. The law favors such a construction of a will as will avoid the disinheritance of remaindermen who may happen to die before the determination of the precedent estate. “The intention is the paramount rule of construction. Most of the other rules are aids to the discovery of the testator’s intention and the application of it.” Dougherty v. Thompson, 167 N. Y., at page 483, 60 N. E., at page 763. In Connelly v. O’Brien, 166 N. Y. 406, 60 N. E. 20, the language was:
“I give all my estate, real and personal, after tlie payment of my debts, to my wife Rose during her life and then to such of my children as may then be alive, share and share alike.”
In that case it was held that the children had a vested remainder.
I think the intention of the testator was to give the estate in remainder, after his wife’s death or remarriage, to his children living at the time of his decease.
If the mother, as the life beneficiary, and the son, as the owner of a vested remainder, are before the court, I think the contingency of
I therefore direct judgment for the plaintiff establishing the validity of the deed of May 1, 1890, and forever barring the defendants and those claiming under them from all claim to any interest in the property, of any kind or nature whatsoever (Code Civ. Proc. § 1645), together with the costs of this action.