31 Misc. 2d 1086 | N.Y. Sup. Ct. | 1961
The trustee herein, the Hanover Bank, has brought this proceeding wherein it seeks the approval of its acts as trustee under an agreement dated August 21, 1899 made by George W. Vanderbilt and Susan Le Boy Dresser Vicomtesse D’Osmoy, and further, among other things, has asked the court to construe the trust agreement as to whether the provisions of same authorize the trustee, after paying certain cash bequests to named persons as set forth in the Tenth Clause of the will of said Vicomtesse D’Osmoy, now deceased, to convey, transfer and deliver the balance of the principal of said trust, and accumulated income thereof, if any, to the Bhode Island Hospital Trust Company as trustee.
By indenture dated June 15, 1899, Susan Le Boy Dresser of the City of New York, who was then contemplating marriage to Vicomtesse D’Osmoy, thereupon transferred to George W. Vanderbilt, also of this city, certain properties therein described in trust, to pay the income thereof to her for life. This trust agreement of August 21, 1899 was entered into to relieve the said Vanderbilt of all obligations of an agreement between them dated June 15, 1899. The trust agreement of August 21, 1899 described Susan Le Boy Dresser as formerly of the City, County and State of New York when referring to the agreement dated June 15,1899. The latter agreement directs that reinvestments
The trustee made as parties to this proceeding the executor of the will of said Vicomtesse D’Osmoy, all those who took cash bequests under the Tenth Clause of her will, the trustee of the trust created under subdivision III of the Tenth Clause of her will and Elisabeth Georgette Lecourt de Béru, the only child of the Vicomtesse D’Osmoy who survived her. No children of hers have predeceased her leaving lawful issues who survived her.
Upon thorough and comprehensive study of the trust agreements, the will of the Vicomtesse D’Osmoy, and the petition herein, the court is satisfied with the merits of the instant application. The court is satisfied that the Rhode Island Hospital Trust Company, as trustee, represents the whole title and interest in the trust created by subdivision III of the Tenth Clause of the will of the Vicomtesse D’Osmoy. Since said trustee represents the whole title and interest in the trust has been made a party to this proceeding, it is not therefore necessary to make any or all of the living persons who are or may be beneficially interested in the said trust parties to this proceeding. The Rhode Island Hospital Trust Company as trustee, represents the whole title and interest and any determination for or against the said trustee of that trust would be binding upon the beneficiaries of that trust and therefore they are not necessary parties herein. The general rule is stated in Bogert, Trusts and Trustees (2d ed., 1960, § 593), wherein it is stated at page 279 that “in all cases where there is no conflict of interest between cestui que trust and trustee, or between the several cestuis que trust, the trustee may sue and be sued without joining the cestui que trust ”. In the leading case in New York (Matter of Straut, 126 N. Y. 201) it was held that trustees represent the whole title and interest and their action, in the absence of fraud or collusion, is binding upon the beneficiaries (see, also, Matter of Clemens, 198 Misc. 1049).
Unquestionably here the validity of the exercise of the power of appointment is governed by the laws of the State of New York. The general rule in New York is that the construction and effect of the exercise of a power of appointment is governed
The court is of the further determination herein that under the law of New York the power of appointment was validly exercised only as to the cash bequests to named individuals and to the executor of the will of Vicomtesse D’Osmoy, and to the trustees of the trust created by the Tenth Clause of her said will for the life of Madeleine Renard, and after the death of said Madeleine Renard, the property should be paid over by said trustee to the issue, per stirpes, of Vicomtesse D’Osmoy, deceased, as provided in the trust agreement herein. In this aspect it is to be observed that Vicomtesse D’Osmoy had only a power exercisable by will which is not an absolute power of disposition presently exercisable. No part of such an appointive fund can be held in further trust for a life not in being at the creation of the power (Personal Property Law, § 11; Genet v. Hunt, 113 N. Y. 158). Vicomtesse D’Osmoy, in regard to that part of the appointive property which she directed by her will to be held in further trust, provided first, that it be held for the term of the life of Madeleine Renard, a person in being at the creation of the power, and second, until the decease of her daughter, Elisabeth Georgette Lecourt de Béru, a person who was not in being at the creation of the power. In these cir
In conclusion, there appears to be no reason why the property should not be put in further trust to be transferred to the Rhode Island Hospital Trust Company, as trustee of the trust created by the Tenth Clause of the will of Vicomtesse D’Osmoy, for administration in Rhode Island and subject to the jurisdiction of the Rhode Island courts. By the Twelfth Clause of the Vicomtesse D’Osmoy’s will she expressly declared that the trust created under the Tenth Clause of her will should be construed and regulated by the laws of the State of Rhode Island and that the validity, construction, effect and administration of the trust should be determined and governed by the laws of that State. Accordingly, in light of the foregoing, the application of the petitioner is in all respects granted.