101 Misc. 465 | N.Y. Sur. Ct. | 1917
This is an accounting proceeding, Alice Louisa Ripley and Emerson Foote, Jr., having filed their account as executors of the estate of the decedent. There is no objection to the account, but on the settlement of a proposed decree the special guardian for an infant remainderman and the attorney for the life beneficiary of a trust fund object to that part of the proposed decree which provides for the payment of the principal of the trust fund to Alice Louisa Ripley, Emerson Foote, Jr., and Benjamin Worthy Home as trustees. The objection is specifically directed to the inclusion of the name of Benjamin Worthy Horne as one of the trustees. The objectants allege that Mr. Home is a nonresident alien and contend that he is not competent to act as trustee of the trust fund created
The testator died on February 8, 1913, and nominated and appointed Alice Louisa Ripley, Emerson Foote, Jr., and Benjamin Worthy Home executors and trastees of Ms will. Benjamin Worthy Horne resides in London, England, and is not a citizen of the United States. My recollection is that when this estate was before me at some earlier stage it appeared that the late Mr. Harry Dillon Ripley resided in London and had property in England when he died. Mr. Horne did not attempt to qualify as executor in this jurisdiction, but he has now filed Ms consent to act as one of the trustees of the trust fund created for the benefit of Alice Louisa Ripley. Mrs. Alice Louisa Ripley at one time desired that Mr. Horne be recogmzed as a trustee under the will of her husband, but she seems lately to have changed her mind, if I am not misinformed. The question of law raised by the objection to the inclusion of his name in the proposed decree for distribution is whether this court should decree that the executors pay the principal of a trust fund in their possession to trustees jointly when it appears that one of them named as trustee in the will of the testator is a nonresident alien.
It happens that the point of law involved in this matter is of importance not only to the particular actors in this proceeding, but to many other Americans now residing in England. Being informed of this, I do not wish the point of law to pass at tMs time sub silentio, nor do I wish to embarrass those not before me by hasty or ill-considered action in this matter upon a point of law of general importance. Incidentally I have learned that other counsel of great eminence in their profession have given opinions on this point now
■ In coming to a conclusion much depends, I think, on the nature of the alleged disability of the foreign testamentary trustee and the time' when such disability accrued. If the disability springs wholly from a late statute, taking effect subsequently to the will itself, the statute may not be retroactive in operation. If the trust was created by the will only, and not by virtue of some action in this court, then the disqualification, if the statute is retroactive in operation, may have to be availed of in an independent proceeding. I shall consider each of these points in turn.
My present impression is that under the will of the late Mr. Ripley, Mr. Horne was vested with a trusteeship quite independently of any authentication of the will itself in this court. In other words, Mr. Horne’s rights and status as trustee flow exclusively from the will and not from the adminicular proceedings on the will taken in this court. Smith v. Miles, 1 T. R. 475, 480; 1 Wms. Exrs. 214; Dunning v. Ocean Nat. Bank, 61 N. Y. 497, 501. Neither probate nor letters of trusteeship are the foundation of Mr. Home’s trusteeship; on the contrary, the will itself is the sole foundation. Harnett v. Wandell, 60 N. Y. 346, 349, 350; Van Schaack v. Saunders, 32 Hun, 515, 520; Matter of Greeley, 15 Abb. Pr. (N. S.) 393, 395; Dunning v. Ocean Nat. Bank, 61 N. Y. 497. Probate does not constitute a testamentary trustee; it is the will alone. Dunning v. Ocean Nat. Bank, 61 N. Y. 497, 502.
There is a fundamental distinction between the office of an executor and that of a testamentary trastee. Redf. Sur. 269, 360, 408, 409. My references to this learned author are to the fifth edition of his work, as that was from his own careful and discriminating hand. Formerly the Surrogate’s Court had no authority to
Nor does it matter that Mr. Horne did not after probate qualify as an executor. It is. well understood that a declination of an executorship is not a declination of a trusteeship conferred by the will. Redf. Sur. (5th ed.) 270, citing Wms. Exrs. Nor does an acceptance of an executorship necessarily imply an acceptance of the trusteeship conferred by the will. The refusal of an executor to accept the trusteeship may always be proved by parol. De Peyster v. Clendining, 8 Paige, 310. The trusteeship given by the will of Mr. Ripley to Mr. Home was not inseparably annexed to his office of executor. Dunning v. Ocean Nat. Bank, 61 N. Y. 497.
There is doubtless some modern authority for the position that a testamentary trusteeship depends on the prior authorization of a court having jurisdiction of the probate of the will. Learned counsel cite to me Perry on Trusts (§ 262) in support of this proposition. This modem work is unavoidably tempered by current notions prevalent in many states. We are too apt to overlook what is well understood elsewhere, that juridical thinking is much affected by contemporary current tendencies. Let us look back for a moment at the growth of the conception that a testamentary trusteeship is dependent on the ratification by the court
That every judge, in every system, has, consciously or unconsciously, as the foreign jurists assert, a current metaphysic and social philosophy which tempers and controls his juridical thinking is probably trae. Otherwise the judge’s application of decided cases by analogy to modern instances would be a mere traditional system of abstract logical inferences, devoid of morale and devoid of solid causative reasons ex aequo et bono. If we leave out of the account the modem tendencies denoted and follow the prior adjudications cited, as we are bound to do, allowing the common law only to furnish our juridical philosophy as we ought to do, then it would seem clear that Mr. Home’s title to the tmsteeship in this estate does not depend on its authentication by this court, but rests solely on the will of Mr. Ripley. With this conclusion as a premise,-we may proceed to consider the nature of the alleged disability of Mr. Horne to receive jointly the trust fund.
At the time Mr. Ripley’s will took effect Mr. Horne was not disqualified from acting as trustee under Mr. Ripley’s will. An alien was at common law competent to take a trusteeship of personalty. Duke of Cumberland v. Graves, 7 N. Y. 305. Chapter 443, Laws of 1914, first provided that no person is competent to serve as a testamentary trastee who is an alien not an inhabitant of the state. Code Civ. Pro. § 2564, as amd. The act of 1914 was not, I think, retroactive in operation. The rale is firmly settled in this state that a law is never to have a retroactive effect if its language can be satisfied by giving it prospective operation only. New York & Oswego Midland R. R. Co.
If, as claimed, Mr. Home has become incompetent to continue to act as trustee by reason of the subsequent legislation of this state, his removal can be sought in an independent proceeding to that end. Code Civ. Pro. §§ 2569, 2570, 2571. His vested interests ought not to be disturbed in some collateral proceeding. In a direct proceeding Mr. Home’s alleged disqualification may be the subject of a more serious consideration than is afforded on a mere settlement of a decree in a collateral proceeding.
It is apparent, I think, from the authorities that Mr. Horne was not originally incompetent to take the trusteeship conferred on him by the will of Mr. Ripley, and that he was vested with it by the ordinary operation of the will itself. Let me summarize my present conclusion: Chapter 443 of the Laws of 1914, which amended the provisions of the Code relating to Surrogates ’ Courts, first provides (Code Civ. Pro. § 2564) that no person who is a nonresident alien is. competent to serve as a testamentary trustee. Prior to that amendment there was no provision of the Code prescribing the qualifications of a testamentary trustee, but section 2817 provided that a testamentary trustee could be removed if he was disqualified or incompetent to act as executor. A nonresident alien was incompetent to act as executor. . As Mr. Ripley died prior to the enactment of chapter 443 of the Laws of 1914, the amendment affected by that chapter does not apply to the qualifications of the persons named as trustees in his will. A person named as trustee in the will derives
I observe incidentally that there is a supplemental account in tMs proceeding. It is a rule of this court that a supplemental account cannot be settled without a new citation or waiver by all concerned. Here there can be no waiver, for there appears to be an infant in court. But I should like to hear counsel again on tMs point. There appears to be also some question as to the amount of costs and allowances. On these two points I desire to hear counsel before signing the decree. I should be much obliged if they would therefore appear before me again at my chambers at tentMrty a. m. on a day to be fixed by them, giving two days’ cross-notice of hearing. I shall then proceed on the grounds partly stated to settle and make the final decree required in this proceeding.
Decreed accordingly.