91 N.Y.S. 937 | N.Y. App. Div. | 1905
This is an appeal by the defendants from a judgment of the Special Term construing the will of Rhoda J. Reeve in favor, of the ■
The learned court at Special Term held that the clause in question was ineffectual to create a lawful express trust for the reason that the devise was not made to the executors in trust but to A. Tuthill Reeve in express terms, and because the purpose of the trust was not one of those enumerated in section 76 of the Real Property Law (Laws of 1896, chap. 517), and that the effect of the provision for the benefit of the son Tuthill was to vest in him a. life estate with an absolute power of disposition not accompanied by a trust, and that as to the plaintiff such estate was changed into a fee absolute to which the lien of the plaintiff’s judgment attached pursuant to section 129 of the Real Property Law. The appellants-challenge this construction, and also raise the question of jurisdiction. ■ In my view of the second question it may not be necessary to determine the first on this appeal, but a determination of the interests of the respective parties will aid in determining the jurisdiction of the court to entertain this action at the instance of the plaintiff.
The province of construction is to determine, first, from the language used, the intention of the testator, and, second, whether that intention can be lawfully effectuated. It is true that by the first part of the clause in question the testatrix does in terms devise the residue of her property to her son Tuthill in words appropriate, when standing alone, to vest in him a fee absolute, but when construed in connection with the rest of the will it becomes apparent that such was not her intention, and that she expressly limited the provision for his benefit, so that he should not take a fee absolute, and by appropriate language to create a trust she expressly provided that the property disposed of for the benefit of her- son Tuthill should be held in trust by her executors, and that if the power of
It is uijged that title in the executors is not necessary for management and care, and that with a life estate in the son Tuthill the executors under a power cotild have full management and care. It seems to me that the direction that the property should be held in trust by. the executors and managed and cared for by them, is inconsistent with a life estate in the son Tuthill. I aril aware that .it has-been said that management and control may be exercised under a power and, without the possession of the legal title, but I am unable to understand how real property can be 'effectually held, managed and cared for by a person during the'life of another who has the legal title. Certainly, the testatrix, by the language .Used, intended that the duties of the executors should be active and not merely advisory. It is true that title' in trustees will ntit.be,implied', except such is the clear intention of the testator, and while the courts'have frequently construed even - express devises to trustees as creating only a power, such constructions have been adopted for the reason that a different' construction would have defeated the intention of the testator, avoided: some portion. of -the will or produced intestacy. Title in
.The judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.
Bartlett, Jenks, Hooker and Rich, JJ., concurred.
.Judgment reversed, with costs, and complaint dismissed, with costs. ■ '