66 N.J. Eq. 297 | N.J. Super. Ct. App. Div. | 1904
Jacob M. Yreeland ■ and Jacob Yreeland, Jr., executors of Jacob J. Yreeland, deceased, exhibited to the orphans court of Somerset county their final account, and thereby disclosed a balance in their hands of $11,761.64. They appended thereto a list of securities in which they had invested funds, which they claimed to hold in trust under the will of the deceased.
Catharine Jane Schultz and Jennie W. Kenyon, legatees under said will, excepted to said account on two grounds: (1) That the executors had not accounted for interest accumulated on their legacies, and (2) that the executors had invested their legacies, which the executors claimed to hold in trust, when the will created no trust of such legacies in the executors.
Jennie W. Kenyon appealed from the decree of the orphans court, and now insists that, by the terms of the will of Jacob J. Yreeland, she became entitled to a specific legacjr, payable to her in trust, and that the executors should have accounted for all interest accrued thereon, at least after one year from the death of the testator.
The clause of the will of Jacob J. Yreeland brought into question by this appellant is in these words:
“Fourteenth. I give to Jennie W. Kenyon, wife of George AY. Kenyon, of New York City, in the State of New York, the sum of two thousand dollars, in trust, the interest to be paid to Jennie AV. Kenyon annually, and after her death the principal sum of two thousand dollars to be divided among her children share and share alike.”
That a cestui que trust may be invested with the powers of, and may be permitted, and even required, to act as a trustee, seems settled. Story v. Palmer, 1 Dick. Ch. Rep. 1; Cruikshank v. Parker, 7 Dick. Ch. Rep. 310; 1 Perry Trusts § 59. As the situation of a trustee, who is also cestui que trust, especially when his interest is for life only, may raise a conflict between the trustee’s .duty and his interest, courts will not adopt a construction of a will which will involve this difficulty unless the testator’s intent is clear. In Parker’s Executors v. Moore, 10 C. E. Gr. 228, a will was under consideration whereby there was a bequest to a-daughter of the testator of a sum of money, the interest of which was to be paid to her during her life and the principal to her children at her decease. This was deemed capable of being construed, and was construed, as a bequest to the daughter for life only, and it was held that the principal sum was not to be paid to her, but to be held by the executors in trust. The executors, desiring to be relieved of the trust, were discharged therefrom, and the fund was administered by the court, and since my advent to office as chancellor, and upon the daughter’s death, has been distributed under the provisions of the will.
But the clause now before us manifestly differs from that contained in the Parker will. Here is an express gift to Mrs. Kenyon, and it is expressed to be a gift in trust. If she were not a cestui que trust, there could be no possible question a's to testator’s intent. A bequest to her in trust for a stranger or 'for her children must have been construed as creating a trust in her, and entitling her to take the fund from the executors and hold it on the trusts specified.
. I am unable to construe this clause otherwise than as creating a trust in Mrs. Kenyon.
It results that the exceptions should have been allowed, and the decree confirming the account must be reversed.
