202 A.D. 259 | N.Y. App. Div. | 1922
In the construction of wills each case must be determined on its own facts. We must find the intention of the testator. The clause in the will out of which the present litigation has arisen reads as follows:
“ Third. I give and bequeath to Angeline M. Cobb, wife of A. H. Cobb, Ten thousand dollars to be placed on interest and the annual interest thereupon to be paid said Angeline M. Cobb during her natural life, and at her decease, the said Ten thousand dollars with accrued interest thereon, to be given to her son, Frederick D. Cobb when of age — but if the said Frederick D. Cobb should not survive his mother, or arrive at the age of twenty-one years, then and in that case the said ten thousand dollars shall revert to my estate at the death of said Angeline.”
By this provision of the will the following rights and interests were created in the fund: (1) The enjoyment of the income from the same by Angeline M. Cobb for and during the term of her natural life; (2) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb and if he be under the age of twenty-one years at the time, then the income from the fund to be accumulated for his benefit during his minority and the fund with the accumulation thereon to be paid to him upon his reaching majority providing he lives so long; (3) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb but thereafter he should die before reaching his majority, then the fund with the accumulation thereon at the date of his death to revert to the estate of the testator; (4) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb and if he be over the age of twenty-one years at the time, the fund to go to him absolutely; (5) upon the death of Angeline M. Cobb, if she has been predeceased by Frederick D. Cobb, the fund to revert to the estate of the testator.
Angeline M. Cobb, the life beneficiary, is still living. Frederick D. H. Cobb, her son, died February 11, 1914, being at the time of his death over the age of twenty-one years. The trial court has erroneously held that the fund in question became the property of Frederick D. H. Cobb on his arriving at the age of twenty-one years, subject only to the life estate of his mother and that as the fund is now in the possession of the representatives of ida
The clause of the will under consideration here constituted a valid disposition of the fund. “ A testator may in form make an absolute bequest of personal property to one, and then limit it over upon his death to another. The limitation in such case is not void for repugnancy, but qualifies the bequest.” (Livingston v. Murray, 68 N. Y. 485, 490.) This character of bequest is often found in the books.
The learned trial justice seems to have assumed that this clause of the will created a trust. He has not indicated, however, just what sort of a trust was created. In order to create an express trust in property there must be “ ‘ (1) a designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee, and (4) the actual delivery of the fund or other property, or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee.’ ” (Brown v. Spohr, 180 N. Y. 201, 209.)
In the present case there was no express gift to the executors and no direction for them to apply the income to the use of anybody. (Snedeker v. Congdon, 41 App. Div. 433.) Thus there was no trust vested in the executors as trustees. “ Nothing whatever is required of them which they may not do as executors and by virtue of the power impliedly conferred. They hold as executors merely, performing their duty as such without taking a trust estate.” (Bliven v. Seymour, 88 N. Y. 477.) In the case just quoted the court had under consideration quite similar language of a will providing: “ I give to my two daughters * * * one thousand dollars each, to be put at interest and there kept during their lifetimes, and they are to have the use thereof, then the principal to go to their children respectively each.” This was held to constitute a life estate with remainder over. So also in Snedeker v. Congdon (supra), a bequest of the interest and income of the property during life was held to be a bequest of a life estate
If Angeline M. Cobb had died leaving her surviving Frederick D. Cobb, not then of age, the accumulation of income for- his benefit until, he reached majority, providing he lived so long, would have created a trust which would have vested in the Supreme Court. (Laws of 1882, chap. 185; revised by Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 8, as amd. by Laws of 1902, chap: 150; now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20, as amd. by Laws of 1911, chap. 217.) And it was competent for the testator to dispose of the accumulations of income in case the minor died before reaching majority. (Smith v. Parsons, 146 N. Y. 116.)
u -Whenever a testator gives and bequeaths a sum to a legatee the law requires it to be paid to the person entitled, within one year from the issue of letters, * * * unless some different time is named, or some other provision forbids the payment or shows that it was not intended. The last occurs whenever a mere life estate is given with remainder over, for in such ease the principal sum is not given at all to the primary legatee, but only the use and' annual income, and the principal remains in the hands of the executor to be paid over at the appointed time.” (Matter of Denton, 102 N. Y. 200, 203.) This is especially true where the legatee has a sum of money with no power to expend any portion of the corpus and the testator does not expressly direct that the fund be turned over to the fife beneficiary. (Matter of McDougall; 141 N. Y. 21.) In that case the testator left the “ ‘ rest and residue ’ of his estate [consisting of $6,000 in cash] to his wife ” to be used and enjoyed by her during her fife or widowhood. The court said- “ In such a case the legatee for' fife is not entitled to possession of the corpus without giving security, certainly not if he be insolvent' or a non-resident. In other cases where it has been held that the legatee was entitled unconditionally to the possession of thé legacy .without security, other facts existed, such as. where the language of the will made it manifest that the', testator, intended to' give to the legatee power to use in his discretion some portion of
If it had been placed in the possession and control of Angelihe M. Cobb by the terms of the will, she would have held it in trust for the remainderman (Matter of Denton, 102 N. Y. 200; Smith v. Van Ostrand, 64 id. 286); but the testator did not create her a trustee for the remainderman. While the fund was not turned.
The plaintiff is one of the remaindermen here and in his complaint alleges that he is bringing this action at the request of other remaindermen, but he brings this action as the sole surviving executor. As such, he is a proper party to bring it. (Tyson v. Blake, 22 N. Y. 558, 562; Moss v. Cohen, supra, and cases cited.) As executor he is responsible for the carrying out of the wishes of his testator and although he might be personally responsible for any loss of the fund due to any illegal investment yet the court will aid him in his capacity as executor to recover it if it can be recovered. (Moss v. Cohen, supra, and cases cited.) The agreement was unlawful because the executor was wholly unauthorized by law to make the loan. The plaintiff could not by such loan discharge himself from the performance of the duty to pay the corpus to the remaindermen. Neither could Frederick Cobb acquire any title to such moneys by reason of any agreement with the plaintiff. All parties dealt with the fund knowing it to be the subject of contingent reversion to the estate and that its character as such followed it into the hands of any person receiving it with knowledge of the facts. (Moss v. Cohen, supra, 252.)
It is clear that under the authorities cited this action can and should be maintained (Moss v. Cohen, supra, and cases cited), unless the decree of the surrogate made in 1892 in the accounting proceedings of the executors of the estate of Hodgman must be taken as res adjudícala so as to preclude this court from declaring the illegality of and from disapproving „ the continuance of the investment which had been made. We think the sole effect of the decree of the surrogate was to approve of Angeline M. Cobb and Frederick D. H. Cobb as proper custodians of the fund and to discharge Mary E. Yates from responsibility as executrix for their
Assuming that the approval of the surrogate in an accounting proceeding in which all parties in interest here were represented may be sufficient to bar any inquiry as to the legality of the thing approved by the surrogate, the decree of the surrogate cannot be considered res adjudícala as to a transaction which did not conform to that which was approved. The thing done was in fact illegal and the legality of it is properly before us. The investment of the fund by loan to Frederick D. H. Cobb was illegal and should not be continued. The loan was treated by the parties to it as an investment. The bond and the stipulation signed on the day of giving the bond reveal that this was so. It is not denied by the parties that this was the fact. We can do no other than to treat it as such.
While the decree of the surrogate purported to discharge Mary E. Yates, as executrix, as to the custody of the fund then authorized, it did not in fact discharge her from responsibility as executrix for an improper disposition of the fund at variance with the terms of the decree. The loan was illegal in the sense that it was unauthorized. It was not such a void instrument as to absolve the parties to it from a responsibility under it. (Moss v. Cohen, supra.) The plaintiff as executor has the right to follow the fund and to recover the full amount of it from the obligors on the bond, if the securities now in the possession of Amos H. Cobb and Angeline M. Cobb are inadequate. We are confronted with the fact, however, that at the present time the bond has not been breached. The interest has been regularly paid and the agreement in the bond was for the payment of the interest during the life of Angeline M. Cobb and the return of the principal upon her death. The executor is not, therefore, in a position at this time to enforce the provisions of the bond since Angeline M. Cobb is
The judgments should be reversed on the law and facts, without costs, and the matter remitted to the Special Term to take such action and to enter such judgment as may be proper in accordance with the views expressed in this opinion. The court disapproves of findings of fact three, fifteen, sixteen, twenty-one and twenty-five.
, All concur.
Judgments reversed on law and facts, without costs, and matter remitted to the Special Term to take such action and to enter such judgment as may be proper in accordance with the views expressed in the opinion. The court disapproves of findings of fact three, fifteen, sixteen, twenty-one and twenty-five.
