127 N.Y.S. 881 | N.Y. Sur. Ct. | 1910
The finding in this case will be that the trust attempted in the sixth paragraph of the will was a dry and passive trust; that the legal estate in the lands sought to be affected thereby was devised to Franklyn R. England,,
The will is so exceptional that an analysis of its words would afford little of general value. The trust during the life of Franklyn is not one of the permissible trusts, since the executor was not thereby authorized to receive the rents and profits. Real Prop. Law, §§ 96, 97. Hence, during the life of Franklyn, the lands must descend, unless there is found in him, either alone or with his wife and children, such right of possession as under the statute will vest a legal ■estate. Real Prop. Law, § 93.
The right “ to occupy,” which the will gives, is a right to the possession and to the rents and profits. This right is fettered by certain requirements which, whether they are ■called conditions or not, impose upon the occupants no duty •or burden which they would not be charged with as life tenants, in the absence of the restrictions. If, then, the possession bestowed is, in terms, no less actual and untrammeled than it would be if no restrictions were indicated, it is the same sort -of actual possession, the same right to the rents and profits, as those which under the statue create a legal estate.
The provision, that in certain events the executors shall rent a part of the premises and apply the rents to the payment of charges upon the house and render the surplus to one of the life tenants, cannot create a trust, for it does not contemplate that the proposed trustees upon intervening shall divest the title of the life tenants, already vested.
In no event are the executors to take away the title to the whole premises, and a trust as to a single floor or other undivided portion of a house is inconceivable.
This forces the inquiry as to whether the duties intended
The persons under this will who were designated therein as entitled to the benefits to result from the leasing of a portion of the premises are the life tenants, as well as the remaindermen, whose estate is to be saved from forfeiture and whose improvements are to be preserved from dilapidation. The executors, therefore, have a power, imposed upon the life estate, to lease the premises and to apply the rents in accordance with the will.
The effort to create a trust in remainder to sell the lands for the benefit of the legatees named should fail, unless it can be seen that the executors are empowered to receive the rents and profits. Real Prop. Law, § 97. No such power is expressly given and the will does not yield any implication of its existence. The right or duty to receive the rents and profits cannot be derived from the mere words of devise, for the statute declares that no estate shall vest in the trustee, even when there is a “ devise ” to him, unless he is “ also empowered to receive the rents and profits.”
In its absence, the executors took a power of sale, and the lands descended subject to the execution of the power. This power is not invalid because, in case of sale, the share of each legatee is to be paid when he arrives at the age of twenty-three years. Upon conversion of the real estate each legatee will take a present right to his legacy, with postponement of its payment.
Nor is the power impaired because, in case of the death of a legatee, his share shall be paid to his survivors. In case
The decree of probate will contain a construction of the will accordingly.
Decreed accordingly.