45 N.Y.S. 201 | N.Y. App. Div. | 1897
This is an action brought by one of the legatees under the will of Albert P. Sturtevant, against the executors and other persons
Albert P. Sturtevant, the testator, was a resident of the State of Connecticut. He was the owner of a large estate situated in that State, as well as of considerable real estate situated in the county of Hew York. He also was the owner of a large amount of personal property. He died on the 14th day of March, 1893. His will is dated on the 25th day of June, 1892, and was executed in the State of Connecticut. By this will he made some specific devises of his real estate to certain persons, but those devises are not necessary to be referred to any further in this opinion. Fie also bequeathed certain sums of personal property to legatees named in the will, and to his wife, but as no question arises upon any of those specific bequests of the personal property no further attention will be paid to them, except to say that the amount of personalty given by those bequests was something over $50,000, iu addition to the use of all the personal property in and about his residence, including furniture, plate, pictures, and his horses, carriages and harnesses, which were given to his wife for her life.
The questions presented here arise substantially upon the 10th and 11th clauses of this will, which will shortly be referred to more at length, and upon several other clauses bequeathing to certain persons annuities to be paid out of his estate. A large portion of the fortune of the testator consisted of an interest in a hotel in the city of
By the 10th clause of his will, which followed the bequest of all the annuities in the will, the testator devised and bequeathed to- liis ■ executors and trustees, “ always subject to the foregoing gifts,” all the rest and residue of his estate, both real and personal, of every name and nature and wheresoever situated, in trust for the uses afterwards mentioned in that clausé, .These trusts were substantially
But, -nevertheless, we think that the claim of .the plaintiff, that the trust was ■ created for the payment of 'the annuities, is not well founded; The express terms of the trust require the payment of the income of the trust property, after expenses' and charges 'upon it shall have been satisfied* to the beneficiaries named therein. ■ ' The trust does not in terms apply to the annuities,, and they cannot be brought Avithin the trust unless it can be said that they aré payable . out of the income of the estate, as expenses and charges thereon. . Tins construction Avill not be given to the bequest unless it is necessary, because a trust will never be implied where it will render the. Avill illegal (Greene v. Greene, 125 N. Y. 506), nor will the trust be extended to other provisions in the Avill, the effect of which would' be to invalidate'if, unless that, construction. is necessarily required by the terms of the will. The. several' bequests of the annuities are made before .the trust estate is created, and the rest and residue is given to the ¿xecutors .and trustees in the clause .creating the trust estate, subject expressly to the ’ foregoing gifts; that ' is, subject to the bequests of the annuities. By fair inference then, the estate which the trustees took under the 10th' clause is that portion of the estate which .is left after providing for the annuities.. To be sure the annuities are tó be paid by the executors and trustees, but .that direction in the bequest of annuities is to be taken in connection, with the further direction that the annuities are to be paid by the executors and trustees out of the estate, and that.-the trustees take, subject to that direction for payment. ' While the a estate is given to them as trustees, and the payment of the annuities is to be made by them out of the estate, it clearly is not to be made as a duty-arising from the' trust, nor out of the income, but the estate given to them is charged with the annuities, because they take the legal title to-it, precisely as' it would haye been charged had it
It has been held that where the annuity is given to a legatee and charged by the testator in his will upon the real and personal estate,, it is not a property held in trust for the legatee, but an absolute'legacy, the payment of which, out of the estate upon which it is a charge, may be enforced in equity by the legatee. (Degraw v. Clason, 11 Paige, 136.) That rule clearly applies here. For the purposes of the construction of this will the executors must be regarded as talcing the legal title subject to the gift of the annuities, and it is their duty to provide for the payment of the annuities out of the estate and not out, of the income of the estate, for by express terms they are given out of the estate. It is quite true that by the Revised Statutes • an express trust may be created to sell, mortgage or lease real property for the benefit of annuitants, or to satisfy a charge upon that property, but it will -not be assumed that an estate is given in trust for that purpose unless it appears by necessary inference that the payment of the annuity7 is one of the purposes of the trust. We have shown, we think, that such is not one of the purposes for which this trust is created. The payment of the annuities cannot be imported into the body of the trust. These annuities stand as a charge upon the legal estate held by the trustees, to be provided for out of the corpus of the estate and before any income can be created to be devoted to the purposes of the trust. Giving that construction to the will, the necessary result follows that the trusts in the 10th clause must be construed without regard to the annuities, and that thus construed it is clearly valid.
These considerations dispose of the questions raised by the appellants upon the construction of the will. The only objection which remains to be considered is that one which refuses to the plaintiff an accounting. In that,- we think, the learned justice was clearly correct. The will was proved in the State of the Hew York on the 2d day of May, 1895, and letters testamentary were then issued to the executors in this State. By express provision of the statute a judicial settlement of the estate could not be compelled in the Surrogate’s Court until one year had expired since the will was admitted to probate. (Code Civ. Proc. § 2807.) This action was
Upon the whole case we are satisfied with tire" conclusions reached by the learned 'justice at- the Special. Term,-' and; the -judgment entered Upon his decision must .be affirmed, with costs to, be paid by the appellants. -
-Patterson, O’Brien, .Ingraham and Barker,. JJ.,.'concurred.
Judgment affirmed, with costs to be paid by. appellants.