82 N.Y.S. 49 | N.Y. App. Div. | 1903
The appellants insist that the judgment appealed from is erroneous and should be reversed, principally upon the ground that
In the will and codicil here under consideration the general scheme and purpose of the testator indicate what he had in mind, and that he intended there should be a period of time when the duties of his executors as such, so far as the fund of $200,000 set apart for the benefit of his daughter Melinda was concerned, should terminate, and that they should thereafter assume, for the benefit of his daughter and her children, the character of trustees of such fund. When was that period of time and what were the duties he contemplated casting upon his executors as trustees? It was, when his estate had become so far settled that his executors could set apart
Matter of Dewey (153 N. Y. 63) is also in point. There the language was : “ I give, devise and bequeath to my said wife, Caroline J. Dewey, the interest upon the sum of twelve thousand dollars to be paid to her annually during the period of her natural life by my executors hereinafter named, said sum to be in lieu of her dower interest in my real estate,” and the court, in passing upon the question as to whether the executors were also trustees, said the testator “ does not, in express language, invest his executors with the powers of trustees. He does, however, require them to carry the provisions of his will into effect and gives them the power to sell or dispose of his real or personal property as in their judgment may seem best. The third clause of the will required them to annually pay to his widow the interest upon $12,000. This necessitated an investment so that the $12,000 would earn an income. This duty was imposed upon them as executors. It was an active duty and such as usually pertains to the office of trustees and such they must be deemed to be for the performance of these duties.”
If we are right in the conclusion that the executors named in the codicil of Mr. Pollen, after the creation of the trust fund referred to, acted not as executors but as trustees of that fund, then upon their death the trust, pursuant to the statute (Laws of 1882, chap. 185, revised by Real Prop. Law [Laws of 1896, chap. 547], § 91, as amd. by Laws of 1902, chap. 151), devolved upon the Supreme Court, and it became its duty to appoint some person to carry out the trust on its behalf, as provided therein. (Horsfield v. Black, 40 App. Div. 264.) The judgment appealed from did not appoint a person to carry out the trust as provided in the statute, but instead appointed the Morton Trust Company trustee. The court had no power to make such appointment. A trustee of a trust fund can only be appointed under section 92 of the Real Property Law, and that is when the trustee has resigned or been removed.
The judgment appealed from, therefore, must be modified by striking therefrom the provision appointing the Morton Trust Company trustee, and providing that upon the death of the original trustee, the trust, being unexecuted, vested in the Supreme Court, and appointing the Morton Trust Company the representative of the court to carry out its provisions ; and as thus modified affirmed, with costs to the respondent payable out of the fund.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to respondents payable out of the fund.
Sic.