7 N.Y.S. 614 | N.Y. Sup. Ct. | 1889
This action, in its theory, was brought to settle the accounts of a trust-estate, of which the plaintiff has been appointed and acted as the trustee. But, for the purpose of settling the accounts and ascertaining the rights of the parties to an accumulating fund, it became necessary to place a con
By the deeds affecting this part of the property of Cortlandt Palmer it was declared by him that if either of these two grandsons should depart this life before attaining the age of 30 years, leaving a child or children him surviving, the half part of the land, premises, and trust fund should be conveyed, assigned, and delivered to his child or children, or such of them, and in such shares or proportions, as he should by his will or written appointment direct; and, in default of such will or appointment, then in equal shares, for their own use, forever. And, in case either of these grandsons should die under 30 years of age, leaving no child him surviving, then his share was directed to be conveyed, assigned, and delivered to his surviving brother then living; and, if there should be ho such survivor, then to the children surviving him, in equal shares, etc. John Arnot Palmer died unmarried, and leaving no child or children to whom his share in this estate could pass under any direction contained in the deeds. This share, consequently, by the direction which has just been referred to, passed to his surviving brother, Bichard Suydam Palmer; and, although he was an infant at the time, as no other or further trust was created, or directed to be created, in this share of the property, in the event of his survivorship, and no direction was given under which the trustee was authorized to hold or continue in its possession or management,
It has been urged that a trust continued in the trustee of this part of the property by reason of a direction in the deeds “that if any person other than the said John Arnot Palmer, or Richard Suydam Palmer, second, shall become entitled to take any share or interest in said lands or said trust fund, and shall then be under the age of twenty-one years, such share shall be held by the said party of the third part, and his successors, and they shall apply the rents and profits thereof to the use of such person, until such person shall attain the age of twenty-one years.” But this direction in the deed excludes the case of this surviving brother. It was by its language made to comprehend only the case of some person other than one of these two brothers becoming entitled to the share or interest in the estate provided for the deceased brother. Why the grantor should have framed the direction in this manner does not appear. But it is sufficient for the purposes of the case that he did so frame it, and provided by this direction only for the continuance of the trust, when the person becoming entitled to the estate should be an individual different from John Arnot or Richard Suydam Palmer. The expression of this intent has been-so clearly made as to produce the immediate vesting of the share of this deceased brother, upon his decease, in his surviving brother. As to that, it has declared no continuation whatever of the trust in this share of the property, during the minority of this survivor. But the share of the deceased brother was designed to vest at once, and absolutely, in him. And the fact of his minority at the time of such decease was not made in any respect a qualification of his right to the absolute title. It may very well be that the grantor of the estate did not anticipate the occurrence of the death of either of these sons during the minority of the survivor. But the direction for the disposition of the share of the deceased brother has been given in such general language as to include and provide for this event, even though it occurred, as it did, within the minority of the surviving brother. The fact that the survivor, being an infant, could not be discreetly intrusted with the estate, is of no moment. For, as to that, the law has provided the means by which it shall be managed and possessed, and the interests of this surviving brother be cared for and protected.
The deeds in controversy provided and directed that the rents and profits of one-half part of this quarter of the property should be received by the trustee, and applied to the use of John Arnot Palmer during his life. This, however, was subjected to the further qualification that upon his attaining the age of 30 years, and with the consent in writing of his mother, if she should then be living and capable of giving such consent, this equal, undivided, eighth part of the property, and all of such additions as might theretofore have been made to it, should be conveyed, signed, transferred, and delivered to him- in fee-simple absolute, for his own use forever. It was further directed that the rents and profits of this part of the estate should be applied to the use of this grandson. And, if there should be a surplus not required for his necessary, proper, convenient, and full support, education, improvement, and comfort, then “such surplus shall accumulate for his benefit; and, on his attaining the full age of twenty-one years, the whole of such surplus, with its accumulations, shall be paid to him, for his own use absolutely. And after he shall have attained the age of twenty-one years, and thenceforth until he shall attain the age of thirty years, the whole of his one-half of such rents and profits
It is needless to pursue or add to these extracts by making others, expressed" in the same general manner in the final deed, made on the 22d November, 1872; for they all equally evince the understanding of the grantor of the property to have been that this phrase should be applied, as it certainly was employed, to refer only to such additions as might, under the conveyances, be-made to the capital of the trust itself. And no different construction of the-language will be justified by the general intention expressed in the deed, that the changes to be made by him should be for the benefit only of his lineal descendants; for the reservation of the authority to make these changes referred in each instance to the property conveyed by him by virtue of the deeds, and that which might afterwards be added to it, and not to such an accumulation of rents or profits as has become the subject of this controversy. In all instances in which he reserved the power of giving different directions, and-where they have been restricted to such as should be made-for the benefit of his lineal descendants, the subject to be affected has, by clear expression, been confined to the trust-estate, as distinguished from its accumulations, with, the exception of such surplus as should be added to it by reason of loans or investments in other real estate, in which instances the additional property, as-well as the securities, were made a part of the capital of the trust. In the directions given for the accumulation the grantor strictly confined himself to the power provided for that object by the statute; for the accumulation was directed to be for the benefit of the son out of whose share or interest it arose during his minority. And that followed the language of the statute itself, providing that “an accumulation of rents and profits of real estate for the benefit of one or more persons may be directed by any will or deed sufficient to pass real estate, as follows: First, if such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority.” 2 Rev. St. (6th Ed.) p.
In the disposition of the case, costs and allowances were provided for by the judgment. The allowances are by no means unreasonable in the amounts for which they have been made; and they, together with the costs, are directed to be paid out of this accumulated fund. The litigation has been principally di