47 N.Y.S. 1052 | N.Y. Sup. Ct. | 1897
On*the 3d day of April, 1885, Mary Irving died, leaving a will, in which Charles Irving and this plaintiff were named as executors and trustees.. Shortly after her death .this will was admitted to probate by the surrogate of the city and; county of New York, and letters testamentary issued to both of the executors, who qualified, entered upon, and continued to discharge their duties as'such until May, 1891, when Charles died; and since that time this plaintiff has continued to, and is' now acting as the survivor. . His right, as such survivor, to' execute a mortgage upon certain real estate of which the testatrix died seized having been questioned, he has instituted this action for the purpose of establishing such right by obtaining a judicial construction of the will. The will, after directing the payment of the debts and funeral expenses of the testatrix, provides as follows:
“ Second. I give, devise and bequeath to my executors, hereinafter named, all my property and estate of every name and kind, and wheresoever situate, to have and to hold to them and the sur; vivor of them and their successors, upon trust nevertheless, and td' and for the following uses and purposes, namely,
“ First. To invest and keep the same invested so' that the same shall produce an income for and during the lives of my husband, Charles Irving, and my son, Benjamin H. Irving.
“ Second.. To apply the net income thereof to the use and support of my said husband for and during his' natural life; and upon his death, in case my said son shall be then living, to apply such net income to the use and support of my said son, Benjamin H. Irving, for and during his natural life. .
“ Third. Hpon the death of my said husband and son, the said property and estate to be owned by, transferred and delivered to
“ Third. I hereby nominate, constitute and appoint my said husband, Charles Irving, and my said son, Benjamin H. Irving, executors of this, my last will and testament.”
The most casual reading of this instrument cannot fail to convince one of the testatrix’s intent. She desired to vest the title of all her property in her husband and son as trustees, with the design and for the purpose of preserving and keeping the corpus intact until the death of both. The language employed to express this design and purpose was so well selected by her that no doubt can exist as to her wish in this respect; and, had she selected as a trustee some other person to act in the place of her son, she would beyond question have accomplished what she desired. If this be true, can it be said upon any well-recognized principle of justice that the trust which she attempted to create must fail because of her attempt to unite the functions of a trustee and the interest of a beneficiary in the same person? I think not. And, in reaching this conclusion, I am not unmindful of the authorities to which my attention has been called bearing upon' the question in which different judges have expressed opinions adversely to this conclusion; but a careful examination of these authorities will show that they are not in point, since the question here presented was not necessarily involved in the questions there considered and therefore was not disposed of or settled by them.- When the beneficiary of an express trust becomes a sole trustee for his own benefit, as in this case, it seems to me that the true rule to adopt is this: that the trust is not thereby destroyed, but that it is improper for the
It follows that the trust created in this will was a valid one,- and should be sustained; that the power conferred upon the plaintiff to act as trustee and sell or mortgage the real estate referred to was a valid power — but, it appearing that the plaintiff now occupies a position where Ms duties as a trustee and his interest as á beneficiary may conflict if he mortgages or sells the property, it is the duty of the Court at this time to assume control of his action and decide and determine for him whether a cause of action exists
Ordered accordingly.