1 Barb. Ch. 34 | New York Court of Chancery | 1845
The bill states that the consideration of the order was repairs, which had been done by anothér person, on the real estate of Catharine W. Van Rensselaer, then in her occupation, use and enjoyment, with the assent of her husband, and for her use, benefit and convenience. But it is not alleged that the real estate upon which such repairs were made was any part of the trust property originally conveyed to Mr. Rhoades in trust, and now held by Phelps as the substituted trustee. And from the peculiar phraseology of the part of the bill in which the consideration of the order is stated, I am inclined to think the real estate upon which, such repairs were made, could not have been any part of the estate which had descended to Mrs. Van Rensselaer as one of the heirs of B. Bleecker; mentioned in the deed of trust. Such repairs, therefore, could not in themselves have constituted an equitable lien upon this trust property in the hands of the substituted trustee. ■
The trust deed embraced some property which came to Mrs. Van Rensselaer from other sources. But as the order is to pay the complainant out of her proportion of the estate of B. Bleecker, deceased, it is only necessary to examine the provisions of the trust deed as to what was coming to her from that source. Indeed there is no allegation in the bill that any part of the personal estate of B. Bleecker, embraced in the trust deed, remained in the hands of the trustee at the time of the commencement of this suit, or that it had not all been disposed of, pursuant to the directions of the trust, before the order in favor of the complainant was drawn. The only charge in the bill in relation to the existence of any of the trust property, is, that subsequent to the substitution of Phelps as trustee, the real estate of B. Bleecker,' deceased, was partitioned by a decree in chancery, among the heirs; and that there was set off to Mrs. Van Rensselaer, or to the trustee, for her share, real estate in Albany, and elsewhere in
The deed of trust purported to convey the real and personal estate absolutely to the trustee, upon trust to take and receive the personal property coming from the estate of B. Bleecker, deceased, as the share of Mrs. Van Rensselaer, when the same should be distributed in due course of administration, and to take possession of her share of the real estate, whenever the same should be partitioned among the heirs, or to receive and invest her share of the proceeds thereof; and from time to time to receive the rents, profits, and the interest, income and dividends of such real and personal estate, and after paying out of the same all repairs, premiums of insurance, taxes, assessments, and expenses chargeable thereon, and commissions of the trustee, to pay over the residue thereof to Mrs. Van Rensselaer, for her sole and separate use, and upon her separate receipt or order, or by a check payable to her order, free from the debts, control, engagements, or interference of her husband ; and so as not to be subject to any contracts made by, or to any judgments or executions against him.
It is very evident that this trust to receive the rents and profits of real estate, or of the proceeds of such estate in case it should be necessary to sell the lands for the purpose of making a partition, comes within the letter as well as the spirit of the sixty-third section of the article of the revised statutes relative to uses and trusts. (1 JR. iS. 730.) The cestui que trust could not therefore assign, dispose of, or in any manner mortgage or pledge her interest in the trust property, or in the future income thereof; nor could she contract any debt which would create a lien upon such future income, so as to authorize the creditor to reach such income by any proceeding, either at law or in equity. And as a feme covert, cannot create .a debt which will be binding upon her personally, her interest in such future rents and profits cannot be reached under the provisions of the fifty-seventh section of that article of the revised statutes. For if she was permitted to pledge the
Previous to the adoption of the revised statutes a trustee might hold the mere naked legal estate in real property, for a feme covert, while the whole equitable interest and estate therein was in her, and subject to her control. In relation to such an estate, therefore, she was considered as a feme sole, and could charge her equitable interest in the property with any debt she might think proper to contract on the credit thereof, which was not inconsistent with the trust or with the nature of her interest in the premises, and which was authorized by the instrument or conveyance creating the trust. All such mere formal trusts, even in favor of femes covert, are now abolished. And in the few trusts which are authorized by the revised statutes, the whole estate, both legal and equitable, is vested in the trustee. The statute also declares, in terms, that the person for whose benefit the trust is created, shall take no estate or interest in the land; but may enforce the performance of the trust in . equity. (.1 JR. S. 729, § 60.) ' The cestui que trust, therefore, has no right to charge the trust property, even for necessary re
As the bill does not show a case entitling the complainant to any relief as against the trustee, or the trust property which such trustee holds for the benefit of Mrs. Yan Rensselaer, the bill must be dismissed; but without prejudice to his remedy at law, if he has any, to obtain payment of his debt.
