140 N.Y. 135 | NY | 1893
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *137
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *138 The testator in his lifetime executed a formal declaration of trust relating to four hundred shares of the capital stock of the New York and Harlem R.R. Company standing in his name on the books of that corporation, and for which he held four certificates. By the terms of the trust the net income and dividends of the stock was to be apportioned into ten equal parts, three of which were to be paid over to the use and benefit of Magdalena Rings, three to the use of Anna Rings, two to the use of Henry Rings for the term of his natural life, and two to Minnie Rings until her decease. The deed further provided that upon the death or marriage of Magdalena, or the decease of Anna, whichever of the three events should first happen, "the portion allotted" to such person should be paid over to the use and benefit of the St. John's Episcopal Church and Society of Salisbury, Connecticut; and "the portion allotted" to the other of the two should, upon the happening of the prescribed event, go to the Buffalo Orphan Asylum. In like manner, at the termination of the life interests of Henry and Minnie, "the portion allotted" to the former was to go to the St. Vincent's Female Asylum of the city of Buffalo, and that allotted to the latter to the Buffalo Hospital of the Sisters of Charity. Practically *140 there were thus created four separate and distinct life interests, each one in a prescribed part or portion of an entire fund, with a remainder over to a new beneficiary forever. The settlor, after executing in triplicate this declaration of trust, which contained also a power of revocation, deposited one original thereof, and also the four certificates of stock in a sealed envelope in his box in the vaults of the Mercantile Safe Deposit Company in the city of New York. The envelope was indorsed, "Declaration of Trust, Jonathan Scoville to Magdalena Rings and others," in a handwriting which was not the settlor's; but following that there was added by his own hand these words: "Declaration of trust with certificates of New York Harlem R.R., certificates belonging to trust and being numbered 21815, 21816, 21817, 21818, 100 shares each. Duplicate declaration of trust filed with the beneficiaries and M.A. Whitney, 202 Main st., Buffalo, N.Y." And then attached thereto was this further memorandum in the testator's handwriting: "N.C. Scoville, for and in behalf of the within named beneficiaries. In case of my decease please see that the enclosed trust is faithfully carried out. Duplicates filed with beneficiaries and M.A. Whitney, 202 Main st., Buffalo, — J. Scoville;" and in the margin of such memorandum appeared the words: "Dated at Buffalo, January 24, 1887, — J. Scoville." The persistent purpose and obvious care of the settlor to make the trust effective and carry its proceeds safely to the appointed destination are further shown by his will, made in December of 1890, after the trust had stood and been fulfilled for almost four years. In article sixth of that will he recites the deposit of the deed of trust, adding as descriptive of it the words: "Which affects a portion of my estate, which portion is more particularly described in a paper inclosed with such deed of trust." He then directs his executors to carry out the provisions of such deed of trust so far as they can, but, in case they cannot, attempts to make a substituted trust for the use of the same beneficiaries and in the same proportions as recited in the deed. The testator made Locke and the Farmers' Loan *141 Trust Co. executors of and trustees under said will, but by a codicil the present plaintiffs were appointed executors, and Locke and the Trust Co. became trustees under the will, article sixth being specifically included.
On this state of facts the Special Term held the trust deed invalid as creating a perpetuity, and the attempted trust of article sixth of the will also invalid and ineffectual, and carried the stock over to the residuary disposition, and so to persons other than the named beneficiaries. The General Term affirmed this decision, holding that the testator meant by the ultimate legacy to the four corporations respectively to keep in existence a trust to pay over income during the entire corporate life, the result being that the purpose of the testator is wholly thwarted and defeated.
The respondents' argument rests upon two propositions: the first that no trust at all was created by the deed, but that instrument amounted only to a promise without consideration to pay to the beneficiaries future accruing income from securities never transferred by the settlor, and of which he remained the absolute owner until his death; and the second, that if there was a trust it necessarily suspended the absolute ownership of the fund for more than two lives in being.
The first proposition has little support in the terms of the instrument itself and none in its surroundings. It is abundantly settled by authority that a trust of personal property may be effectually framed in which the author of the trust is himself the trustee. (Martin v. Funk,
In the present case there were both words and acts. The settlor first described the property which he severed from his general estate and set apart as the productive source of the income and dividends which he could not hold as trustee before they accrued or existed, except as he so held the certificates which gave the potential right, and then declared himself a trustee of the named beneficiaries, to receive and pay over to them, for their own use and benefit, all future income and dividends which should accrue. No beneficial interest in the property *142
was left in himself, but the whole of that interest was by his own act vested elsewhere. He held the legal title to the stock, but necessarily held it, from the date of his declaration, as trustee for the beneficiaries. There was no formal transfer on the books of the company from himself as an individual to himself as trustee, and he remained the nominal owner, holding the naked and barren legal title. In such a case, as between a vendor and vendee of stocks, the vendor holds the legal title as trustee for the vendee, because the former, having parted with the entire beneficial interest, can hold the legal title in no other way. (Johnson v. Underhill,
The respondents' second proposition is more difficult to answer until we see clearly the real point upon which it turns, and which I take to be, whether the words and acts of the settlor will bear the interpretation of four several trusts, each for the life of a beneficiary, with an absolute gift over in each instance; or whether, because that interpretation is impossible and inadmissible, we are driven to the construction that the trust was to continue forever as the instrument of an eternal distribution of income and dividends, an interpretation involving, in greater or less degree, the destruction of the trust.
There is no difficulty in regarding the four shares as separate and several, although the fund itself was to be held as a whole until the moment for an actual severance should come. (Savage
v. Burnham,
I have not failed to reflect upon the adverse view of the majority of the General Term. They say that if we hold that there are here several trusts "it will be impossible for the creator of a trust, however much he may desire to do so, to express any intention to have a fund remain in solido." No case denies him that right. We here do not deny it. If this settlor had expressly said, in terms admitting of no other construction, that the fund should so remain forever, or made dispositions which required it to so remain, we should say so and let the consequences follow. There are many such cases, generally *145
where there are provisions of survivorship involving contingencies which compel the fund to remain unbroken until it can be known who shall take and in what proportion. Such cases and those like the present were distinguished and separated inLorillard v. Coster (5 Paige, 172; 14 Wend. 265), and again in Everitt v. Everitt (
We should now ascertain what character and quantity of interest the deed transmitted to the several corporations upon the death of the life beneficiaries. I have already described it as the entire interest and absolute ownership, and it is necessary to justify the description, and the process will bring clearly into view what I suppose to be the decisive inquiry in the case. If the principal is put in a trust extending beyond each life interest and covering the succeeding corporate life, there is a suspension of the absolute ownership which will inevitably destroy the trust. If, on the other hand, by the legal construction of the instrument, each trust terminated at the death of its life beneficiary, then, in the absence of any gift of the principal by express mention directed to its disposition, the gift to the ultimate beneficiaries of the whole income and dividends is a gift of the principal vesting the absolute ownership. In Paterson v. Ellis (11 Wend. 298), the rule was declared that "a devise of the interest or of the rents and profits is a *146
devise of the thing itself out of which that interest or those rents and profits may issue." And the court added: "Where the intention of the testator to give only the use is clear, manifest and undisputed, the rule must yield to the stronger force of the intention; but where it is doubtful whether the use only or the absolute ownership was intended to be given the rule has been allowed to have a controlling effect." In Smith v. Post (2 Edw. Ch. 526), a gift of the rents and profits of land was held to have vested the title to the land in such devisees, because, while there was mention of the land, there was no disposing mention of it. And in Hatch v. Bassett (
That language not only permits, but, I think, indicates such construction. The settlor, in the case of Anna, for example, instead of saying that he holds her share in trust, to pay her the income and dividends for life, and then to pay them to the Asylum during its corporate life, follows the trust to her with the words "provided, however," that upon her death her share shall be paid to the Asylum. The word "provided," usually indicates a condition, and would seem to show that a trust for Anna's life was created, with a subsequent condition that on its termination the portion allotted to her should go to the Asylum. It is not a sufficient answer to say that the trust is for "the uses and purposes following;" and payment of income to the corporation is a use and purpose "following," and contained in the same paragraph with the use for the benefit of Anna. That construction would put under the dominion of the trusts another condition subsequent, contained in the same paragraph, and introduced again by the word "provided." That condition is that Magdalena and Anna, out of the income apportioned to them, "shall each bear and pay an equal portion of the taxes, repairs and insurance of the premises this day leased to the beneficiaries herein named." Each was to pay: not the trustee: and pay it out of the income which should come to her from the trust. This proviso was clearly not within the trust or among its uses, although in the same paragraph and following the primary declaration. So that we have a case where the intended duration of the trust is only certain down to the death of the life tenants, and, after that, becomes at least doubtful and uncertain, in view of its natural and reasonable *149
purposes, and the language used by the settlor in creating it. In such a case, the trust is not to be prolonged to its own destruction by mere inference or implication (Greene v.Greene,
If now we turn to the other form of the same question, which is whether the mere use was intended to be given, or whether we are permitted to say that the gift was absolute and carried the principal itself, we find ourselves bound to choose the latter alternative, as I have already shown, unless there is disclosed an intention to give the use merely which is "clear, manifest and undisputed." That is not true of this case by any means. The only rational object of giving the use merely would have been to preserve the principal for some other destination. No conscious disposition of that principal was made by the settlor outside of and beyond the corporate legatees. His deed contains no such ultimate disposition. Evidently the settlor contemplated no remainder, for there could be none where the entire beneficial interest was given forever, because given to corporations which do not die. It was for cases of such character that the rule was framed which adds the naked and barren legal title to a gift of the entire beneficial interest, because outside of that such title can go nowhere and represents nothing.
We are thus at liberty to hold that there was no intention to give the mere use; and at all events it is impossible to say that such an intention, if there are any indications of its existence, is clear, manifest and undisputed. It is very far from that; and so the rule is controlling which regards the gift of the entire income and dividends as a gift of the principal out of which they issue.
No rule of construction is violated by holding that the settlor created four separate and independent trusts instead of one only; that each of those trusts terminated at the death of its life beneficiary, or in one case on the precedent marriage of that one; that there was no disposing mention of the principal of the fund when freed from the temporary incumbrance *150 of its trust; and that the gift thereupon of the income and dividends to a corporation forever was a gift of the principal out of which they were to issue. Such then is one permissible and possible construction, and being so we are bound to prefer it to the other interpretation suggested, which makes the creator of the trust contemplate its existence and operation forever, and dictate that the principal of the fund should be eternally inalienable, with the inevitable result that his whole disposition must fail, and his anxious intention be thwarted in all its parts.
It follows that the judgment of the courts below should be reversed, and judgment be entered declaring the dispositions of the declaration of trust executed by the testator in his lifetime to be valid; that the plaintiffs as executors deliver over to the defendant trustees under the trust the shares of stock therein described, and the dividends thereon if, and so far as, the same have come to their hands, and have no other duty to perform in respect thereof; that the said trustees hold said stock upon the trusts herein described and defined, and that the costs of all parties in all the courts be paid out of the testator's estate.
All concur.
Judgment accordingly.