13 N.Y.S. 105 | N.Y. Sup. Ct. | 1891
In the year 1876 the defendant the Hew York Life Insurance & Trust Company held, as trustee-under the will of one James Boggs, certain real and personal property.. The beneficiary for life was Julia A. Livingston, the mother of the plaintiff and one James B. Livingston, now deceased. The terms of the trust were, in substance, that it should continue during the joint lives of Julia A. Livingston and Lewis Livingston, her hus
Thus these two brothers attempted to create a trust which might continue as to some portion of the trust, at least, during their lives. Thereafter, in November, 1884, Julia A. Livingston died leaving her husband, Lewis Livingston, and her said two children, surviving; whereupon the trust under the Boggs will ceased, and the entire property held thereunder vested in her children, subject to the trust above recited, created by the instrument of the 15th of December, 1876. On the 21st of February, 1885, Lewis H. and James B. Livingston and the trust company entered into an agreement dated on that day, whereby certain specific property was set out to make up the respective funds of $100,000, as called for by the instrument of 1876, which instrument contained clauses formally ratifying the trust created by said instrument of 1876, and expressly granted, transferred, and assigned to said trust company the said property, to be held by said company upon the trusts set forth in the deed of December 16, 1876. Thereafter, in October, 1887, James B. Livingston died, leaving a last will and testament, which has been proved, and
It is urged in support of the judgment that, as the absolute ownership of the trust-estate was suspended during the life of Julia A. Livingston by the express terms of the instrument under consideration, disability was continued for two additional lives, because by its terms the trust, as made, embraced every existing trust-estate, and continued the same trust, in the same trustee, for the two additional lives. And we are cited to the case of Genet v. Hunt, 113 N. Y. 158, 21 N. E. Rep. 91, as an authority that such a suspension is void. In determining this claim, it will be necessary to consider for a moment the precise situation of the parties in respect to this particular trust. The foundation of the claim of the plaintiff depends, as far as this point of the case is concerned, upon the fact that the deed of December, 1876, was a continuation of an existing trust. If this was not the fact, then the case of Genet v. Hunt has no application, and the claim has no foundation. How, what was the interest of. James B. and Lewis H. Livingston in the estate in which their mother had only a life-interest, if she did not survive her husband ? The Revised Statutes provide (volume 1, marg. p. 723) that estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy; that an estate in possession is where the owner has an immediate right to the possession of the land, (and it may be said here that these propositions are applicable to personal property,) and that an estate in expectancy is where the right of possession is postponed to a future period. How, therefore, James B. and Lewis H. Livingston had an estate in expectancy in this property which was involved in the trust created by the Boggs will. The statute then proceeds as follows: “Estates in expectancy are divided into estates commencing at a future day, denominated ‘ future estates,’ and reversions. A future estate is an estate limited to commence at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise of a precedent estate created at the same time. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in'possession on the determination of a particular estate granted or devised.” It will thus be seen that the interest which James B. and Lewis H. Livingston had in this fund was a future estate, it being limited upon the termination of the particular estate during the life-time of their father. The statute further states that “future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent while the person to whom or the event upon which they are limited to take effect remains uncertain.” Therefore Julia A. Livingston, under the Boggs will, was not only a life-tenant, but held a contingent future estate, and so did her sons James B. and Lewis H. Livingston hold a contingent future estate in the trust funds. The Revised Statutes, by the provisions to which attention has been called, have thrown under one head all future estates, whether vested or contingent, and whether formerly known as “ vested remainders,” “contin
It is true that they speak of continuing the trust contained in the Boggs will. But they had no power to continue that trust; they could add nothing to that will. Whatever trust they could create sprang into existence by the instrument which they executed. It there had its origin, and it had no relation whatever to the trust created by the Boggs will. It was the complete creation of a trust if the Boggs will had never been mentioned in it, and the mere feet of the mention of that will, and the fact that the settlors have insisted in the instrument that they were going to do a thing which was improper, cannot invalidate that which they legally did. The recital of the instrument does not control. They recited that they were going to continue that trust, which was an inpossibility. All that they did was to create another trust, affecting, it is true, a portion of the same property. But it was in the exercise of the power of alienation conferred upon them by the statute that they executed this trust-deed. There is no question but that, had they the property in possession, they could have created this trust in respect to the same property. How, as they could alien their estate in the property, although held in trust during the joint lives of their father and mother, precisely the same as though they had it in possession, we fail to see any reason why they might not create a trust in respect to that property. The difficulty about the position of the plaintiff in this respect is that he has confounded the ease of the alienation of an expectant estáte with a case where the power to act is derived from the instrument which originally created the estate. In the case of Genet v. Hunt it was held that the exercise of the power derived its validity from the original instrument, and related back to the original instrument. It is the exercise of a power conferred by the original instrument, and therefore whatever is.done is deemed to be done by the original instrument. And this all that was decided by that ease. The court say that an estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power; that the power of disposition (referring to the facts of that particular case) reserved by Mrs. Biggs in the trust-deed was not an absolute power equivalent to absolute ownership; it was restricted to a disposition by will.” In the case cited, the power to act was derived from the instrument creating the trust. In the case at bar the power to act arose from the ownership of the estate, and such ownership was absolute, although it was an expectant estate, because, as already stated, the owner of an expectant estate has as much right to alien as the owner, of an éstate in possession.
This brings us to the next proposition, viz., that the plaintiff never intended to make a trust of the nature expressed in the written instrument. It is claimed that, if this is the fact, he has a right to maintain this action for a rescission and cancellation of the trust; and the distinction between actions to reform an instrument, and an action to rescind and cancel the same, is called to the attention of the court; and it is urged that the mistake of the plaintiff alone is sufficient ground for its rescission and cancellation. Whatever may be the rule in- that regard,—and we express no opinion about it,— in respect to executory contracts, it is certainly not the rule in respect to executed contracts. In the case at bar one of the contracting parties has completely executed his share of the contract. The other party, he being dead, proposes to break the trust upon the statement that the instrument was not of