5 F. Cas. 640 | S.D.N.Y. | 1875
The deedt of November 6th. 1S63, made by Evans, can't eys to “Edward Willis, as trustee, as hereinafter set forth,” the premises therein described, being 131 94-100 acres, and 22 93-100 acres. The habendum is to “Edward. Willis, trustee, his successors and assigns, forever, in trust, nevertheless, to and for the sole and separate use, benefit and behoof of Elizabeth D. Willis, wife of the said Edward, for and during the term of her natural life, free from the debts, liabilities or contracts of her present or any future husband, with remainder at her death to her children, then in life, by the said Edward begotten, or who-have issue alive at that time, the issue of any deceased child taking the parent’s proportionate share; but, should the said Elizabeth L. die, leaving no child or issue of a child, by the said Edward begotten, then with remainder to the said Edward and his heirs in fee simple: provided, always, that the trustee for the time being may, at any time, by deed, in which Elizabeth L. Willis voluntarily joins, sell and convey, mortgage, or exchange the premises aforesaid, reinvesting the proceeds <)f such sale, subject to-the same uses and trusts, and, from time to-time, when needful or advisable, sell and exchange, or otherwise dispose of, in a similar way, any other property held under the provisions of this deed: and provided further, that the separate receipt of the said Elizabeth L. shall be a full and sufficient discharge to the trustee for the time being, for the yearly income of the trust estate.”
It is apparent, from these provisions of the deed, that Mrs. Willis had only a life interest in the property, and was to receive only its “yearly income;” that Mr. Willis was trustee, under the deed, not merely to receive the income of the property, and pay such income to Mrs. Willis during her life, but also to dispose of the property after her death, by turning it over to her then living children by him, and the issue of her dead children by him, and, in default of any such takers, by turning it over to himself, in fee simple. If it should be sold by him, as trustee, its proceeds were to be reinvested bj-him, subject to the same uses and trusts, and these provisions were to apply to all property held under the provisions of the deed. Mrs. Willis had no right or title to the property, or to its principal or capital, or to the proceeds of its sale, but only a right to receive the income from the property or from the proceeds of its sale. The property, and, if it were sold, the proceeds of the sale, went into the hands of Mr. Wil
By the deed of the 30th of May, 1870, Mr. Willis, as trustee under said- deed from Evans, .joined with his wife in conveying to Rogers the said premises, declaring in the deed that he considered it “needful and advisable to dispose of said tracts of land.” This deed covered, also, another tract of land, of 00 acres, described as in the hands of Mr. Willis, as trastee under a deed from one Green. The consideration for the whole is stated at $G,000. The purchaser appears to have paid $3,000 in cash on the 14th of June, 1S70, and to have given his note for $3,000, payable, with interest, January 1st, 1S72, secured by a mortgage back on the premises conveyed. The mortgagee is described in the mortgage as Edward Willis, as trustee for his wile, Elizabeth L. Willis, under deeds from Evans and Green. Of the $3,000 paid in cash, the sum of $2.715 seems to have gone into the hands of Mr. Willis, and to have been used by him for the purposes of the firm composed of the bankrupts, and the note was used by him for the same purpose. I am not furnished with any copy of the deed from Green of the 50 acres; but I must assume, in the absence of evidence to the contrary, that the terms of the trust in it were the same as those in the deed from Evans. Mr. Miller, the attorney for Mrs. Willis, speaks, in his testimony, of the sale to Rogers as being one which did not include the 50 acres, but this is not so. If the trust in the deed from Green was different in its terms from that in the deed from Evans, it was for Mrs. Willis to show it, and to show her absolute title to the proceeds of the 30 acres, and then to show how the $6,000 purchase money can be apportioned among the tracts covered by the deed to Rogers. As it is, Mrs. Willis shows no title to any of the proceeds of tiie sale to Rogers. The title to such proceeds ivas in Mr. Willis, as trustee, under a trust with the provisions before recited. That being so, Mrs. Willis had no money on deposit with Willis & Chisolm, on the 30th of Juno, 1S70. Whatever claim she may have had to any income from the proceeds of the sale of the lands sold, that claim was one against Mr. Willis alone, and was not one against the firm, even though the proceeds were used by Mr. Willis for the benefit of the firm, and Mr. Willis could not appropriate the firm’s property, as against the firm’s creditors, to secure such claim.
These considerations require that Mrs. Willis’s claim to the proceeds of the Belleville property be disallowed: and it. is not necessary to pass upon any of the other questions raised and discussed.
