119 N.Y.S. 3 | N.Y. App. Div. | 1909
Lead Opinion
On the former appeal herein by the substituted trustees from an interlocutory judgment overruling their demurrer to the complaint on the ground, among others, that it failed to state facts sufficient to constitute a cause of action, this court sustained the complaint. (Newton v. Jay, 107 App. Div. 457.) The material facts bearing upon the sufficiency of the complaint and which have now been substantially proved as alleged, are stated in our former opinion, and may, therefore, so far as pertinent to the questions presented by this appeal, be discussed without being restated. Our decision
After the former decision on the appeal answers were interposed by all of the defendants and the issues were brought to trial. The learned trial justice found every material fact alleged in the complaint and sustained every claim made thereon by the plaintiff with one exception. The learned counsel for the substituted trustees evidently contended on the trial, as he now does here, that the clause in the mortgage given by the defendant Anna Benkard Hunt, Frederick Percy Hunt, Lilian Catherine Hunt and Reginald Sidney Hunt, all of her children, excepting the respondent Rupert Herbert Hunt, who at thejhue of the execution of the mortgage was an infant and did not join therein, to Thomas Charles Line, made on the 1st day of July, 1898, providing that the said Anna Benkard Hunt, at the request of and with the concurrence of her adult children, released to them and to all persons interested in the trust estate as a condition of obtaining the loan from the mortgagee the power of appointment in unequal shares conferred upon her by herself or reserved to her by the indenture of November 18, 1879, to the end and intent that the trust estate should thereupon vest absolutely in her four children named therein, being all of her children, including the infant, share and share alike, subject only to her life interest therein, was not effectual to release and extinguish the power of unequal appointment among her children, that is to say, that it did not divest her of authority to exercise the power of appointment which she reserved or gave to herself by the indenture of November 18, 1879. If the trial justice had sustained the contention made in behalf of the plaintiff on this point, the judgment would have presently attached not only to the income, which, by the trust indenture, was given to the trustees for the use of the settlor of the trust during her life, but to a three-quarters interest in the remainder of the corpus of the estate as well, provided the remainder vested absolute in the children as was assumed by the parties to the mortgage and was asserted by both appellants and respondents and assumed by this court without examination on the former appeal. If the right of the children to share equally in the remainder had
The notice of appeal of the plaintiff is, as has been stated in the statement of facts, from many parts of the judgment, which, however, depend upon the decision of the single question as to whether the settlor has, as against the owner of the indebtedness and the holder of the mortgage, extinguished all right to further exercise any power of appointment with respect to directing by will or otherwise that her children shall take the remainder in unequal shares, or that one or more shall take to the exclusion of others or another.
The learned counsel for the appellants other than the plaintiff request the court to reconsider the decision made on the former appeal, principally upon the-ground that the court overlooked or failed to follow the decision of the Court of Appeals in Noyes v. Blakeman (6 N. Y. 567). On the former appeal herein that case was cited in the points and examined by the court, but it was not deemed necessary to consider it in the opinion, for it was deemed inapplicable, in view of the later decision in Schenck v. Barnes (156 N. Y. 316), which expressly decided that where the settlor of the trust reserves to himself the beneficial interest for his life, such beneficial interest is subject to the claims of creditors, even though he were solvent at the time he created the trust. It necessarily follows from that decision that the prohibition against the alienation by a life beneficiary of rents, issues and profits, contained in section 63 of article 2 of title 2 of chapter 1 of part 2 of the Revised Statutes, does not apply where the life beneficiary is the settlor of the trust; and it necessarily follows that it was competent for the settlor of the trust to assign her interest in the income, as she did in the case at bar, by giving a mortgage thereon. Nothing in the case of Noyes v. Blakeman (supra) was, we think, intended to decide that
It was stated in the opinion on the former appeal, in effect, that the settlor of the trust, by her agreement with the parties in interest, as already stated herein, and by executing the mortgage, extinguished any right she had to make a further appointment with respect to the division of the remainder between her children. The decision of that question was not necessarily involved and is, therefore, not res adjudícala. The four justices who are voting for a modification of the decree in accordance with the views expressed in this opinion are equally divided in their views on that question, and for that reason, as well as for another to be stated presently, no opinion is expressed thereon now. In the circumstances, we deem it proper to defer a decision of the question as to whether the settlor of the trust may, by will or otherwise, give any further effectual direction with respect to the shares in remainder which her children "shall take, until her death, and to confine our decision to an adjudication that the plaintiff, by virtue of the mortgage, has a lien upon and is entitled to the income payable under the trust indenture to
It appears by the judgment roll in an action in the Supreme Court in the county of Hew York, brought by one of the original trustees in July, 1879, against the other two, the settlor of the trust and her husband and her children, for leave to resign and for the substitution of William Jay and Alonzo C. Monson — respondent Rupert Herbert Hunt was not a party, for he was not born until after the termination of the litigation — that with the consent of the settlor, two of the original trustees resigned in 1879, after accounting in that action, and the third then, pursuant to authority conferred upon him by the original trust agreement, named Alonzo C. Monson and William Jay as substituted trustees on the nomination of the settlor of the trust, and then the plaintiff in that action resigned as trustee with the consent of the settlor; that before .these resignations the trustees had decided to exercise the power conferred upon them and advanced to the settlor the sum of $50,000 out of the corpus of the trust fund on condition that she should exercise the power of appointment reserved to her in the original trust indenture, which was a general power of appointment to be exercised by her by a last will and testament or an instrument in the nature thereof, and in default of such exercise, it was provided that the remainder should pass under the laws of the State of Hew York with respect to intestate property ; that she had exercised this power of appointment by the indenture of Hovember 18, 1879, to which reference is made and which is more fully described in the opinion of this court on the former appeal, and that,the court, in and by the judgment in that action, entered Hovember 26, 1879, accepted the resignations of the trustees and the appointment of the substituted trustees and conferred the same authority upon the substituted trustees as on the original, except as to advancing part of the capital to the settlor and naming successors, and fix
The decree of the Supreme Court to which reference has been made confirms the trust indenture of November 18, 1879, which, in effect, reserves to the settlor authority to revoke by last will and testament the appointment as made, in whole or in part, as to one or more of the children, and to direct that another or others shall take the estate thus cut off, which might result in the children taking in unequal shares. The question whether it was competent for the settlor of the trust, as a condition of obtaining the loan to secure which the mortgage was given, to effectually release and relinquish this reserved right to give a further valid direction by her last will and testament with respect to the shares which the children should take as between themselves, is one which we do not now decide, for
“And in the event of there being no child or children of hers, nor issue of a child or children living at the time of the death of the party of the first part, then she reserves to herself the absolute right of disposing of the said trust estate by her Last Will and Testament or instrument in the nature thereof, to any person or persons whomsoever, as she may desire, and she also reserves to herself the right to dispose by Last Will and Testament or by instrument in the nature thereof, of all and singular the said trust estate in the event of all her children departing this life without issue during the lifetime of her said husband, anything herein contained to the contrary in anywise notwithstanding.”
It seems quite clear, in view of these provisions, that any child who predeceases his mother would become divested of any interest in the estate, and that the same would vest on the death of his mother in his issue, and in the event of his leaving no issue then living, in the other children or their issue then living (Matter of Hogarty, 62 App. Div. 79); but they would take under the indenture and not from him.
The construction of the indenture in this regard was not presented for adjudication on the former appeal, and the court did not decide the question. The observation in the opinion on the former appeal that “ upon the execution of the deed of appointment and the relinquishment of the right to further exercise the power of appointment, the interests of the children, which were theretofore contingent, became vested subject only to the life estate of their mother, the legal title, however, being in the trustees ” (107 App. Div. 457, 468), was made with reference to the extinguishment of the right of the settlor to further exercise the power of appointment. The question as to whether the remainder vested absolute in the children, or was subject to be divested, was not only not necessarily involved in a decision of the appeal, but the court was not asked by either party to pass upon the question, and both counsel in their points assumed and expressly claimed that the remainder vested absolute in the children so far as the question now under consideration is concerned — they litigated the question as to the right of the settlor to exercise the authority reserved — and that theory of
Counsel for the plaintiff who was the respondent stated in his points as follows: “ But, in addition to the interest of Mrs. Hunt, we have also an assignment of the interests of two of her children in the trust estate. That these expectant interests in remainder are assignable needs no argument. They are vested remainders, the possession only being postponed. * * * The power of appointment does not interfere with the vesting.”
It will thus be seen that the question as to whether the estates of the remaindermen were vested absolute, or subject to be divested by their death during the life of their mother, was not presented for decision on the former appeal, but would be necessarily involved if the court should now undertake to decide the precise interest in remainder that will be subject, on the death of the settlor of the trust, to the payment of this indebtedness, and since the interests of the mortgagor-remaindermen are subject to be divested by their death during the lifetime of their mother, it cannot now be known whether any share or interest in the remainder will be applicable to the payment of. the indebtedness, and since we are not in accord on the question as to whether the settlor may, by her last will and testament or otherwise, affect the interest in remainder which any
The effect of the foreign adjudication was, we think, properly decided by the learned trial justice and needs no further consideration here. We agree with the learned trial justice that the income can be reached as it accrues from time to time in the hands of the substituted trustees. The contingent estates in the remainder of the other mortgagors might, perhaps, be presently reached by directing a sale thereof; but that relief does not appear to have been asked and no objection is made to deferring relief against the remainder until the expiration of the trust.
We think, however, that the court erred in adjudging that the substituted trustees are accountable to the plaintiff for all income received after notice of the claim made by plaintiff under the mortgage. The plaintiff took no further step toward asserting or enforcing "his claim after giving this notice, until he commenced this action some four years thereafter. In view of the fact that the Supreme Court in resettling the trust commanded the trustees to pay the income to Mrs. Hunt, I think they were justified in continuing to pay it after such notice until the plaintiff obtained an injunction, the appointment of a receiver or a judgment of a court of competent jurisdiction, declaring that the lien of the mortgage attached to the income as it accrues. The judgment, therefore, should also be modified by requiring the trustees to account only from the date of the decision of the trial court herein.
The judgment should be modified as herein indicated and by inserting appropriate provisions showing that it is not to be deemed an adjudication on the question as to whether or not it is competent for the settlor of the trust to direct by last will and testament that the remaindermen who joined in the mortgage shall take less than their interests as recited in the mortgage — the modifications to be
Patteeson, P. J., Claeke and Scott, JJ., concurred; Ijtobaham, J., dissented.
Dissenting Opinion
(dissenting);
There are several interesting questions presented by this appeal, and I wish, first, to state my conclusion without considering how far the court is concluded by the former decision on the appeal from the judgment, overruling the demurrer to the complaint. (107 App. Div. 457.) By the original deed of trust, dated the 31st day of July, 1872, it is quite clear that a valid trust was created. By that instrument the defendant Anna B. Hunt, then Anna Benltard granted, bargained, assigned, transferred and set over unto the parties of the second part the property described, which consisted of real and personal property, “ To have and .to hold the above described premises with the appurtenances, unto the said parties of the second part, and their successors and assigns upon the trusts nevertheless, and to and for the uses and purposes following, that is to say.” The trustees were to sell and dispose of the real and personal, property at such time and upon such terms as tlie trustees should deem proper; to invest and keep invested from time to time the net proceeds thereof; collect and receive the interest, income, rents, issues and profits therefrom, and' pay and apply the net interest, income, rents, issues and profits to the use of Anna Benkard, the creator of the trust, for and during her natural life, and after her death to pay and divide the real and personal estate, or the proceeds thereof, among such person or persons or body corporate and in such relative shares, estates or proportions as the said party of the first part should, by her last will and testament or instrument in writing in the nature of a last will and testament, designate and appoint, and in default of any lawful designation or appointment, then to pay and divide the said real and personal estate or the proceeds thereof among such person or persons as under the laws of the State of New York should then be the heirs at law of the party of the first part. This created an express trust under section 55 of the Statute of Uses and Trusts. (1 R, S. 728, as amd. by Laws of
Subsequent to the execution of these two instruments judgment was entered in the action commenced by the remaining trustee and to which the said Anna B. Hunt, her husband and all of her children, except the defendant Rupert Herbert Hunt, who was then unborn, were parties. That judgment recited the conveyance by the plaintiff to the substituted trustees, the indenture by which the defendant Anna B. Hunt had received the sum of $50,000 on condition that she should exercise the power to her reserved of appointing by her last will and testament or otherwise the manner in which the remainder of the said trust estate should be vested and divided at her death; that the said Anna B. Hunt, in consideration of such
The effect of this instrument, ratified and confirmed by the judgment, was to limit the power of appointment reserved by Anna B. Hunt, so that it thereafter could only be exercised according to the terms of the instrument judicially declared to be effectual and irrevocable. It bound all the parties to that action, including Anna B. Hunt, in whom the power to dispose of the remainder of the property had theretofore existed. It still reserved, however, to Anna B. Hunt the right by a last will and testament, or instrument in the nature of a' last will and testament, to distribute the remainder
I can find nothing in this instrument which either directly or by necessary implication assigned or attempted to assign the future income from the trust property to accrue to Anna B. Hunt during her life. The whole transfer relates to the real and personal estate and all other of the trust estate comprised in and subject to the trust to continue during Anna B. Hunt’s life. It is the trust estate that is subject to the trust that is assigned and transferred to the mortgagee, and full effect can be given to every covenant and agreement in this instrument by construing it as transferring the interest of those executing it in the remainder, and excluding from the effect of the mortgage, which it nowhere attempts to assign or transfer, the income upon the trust property during the continuance of the trust. After default had beer, made in the payment of the amount loaned, the plaintiff commenced an action at law in the courts of England to recover the amount of the loan. The mort-
In a creditor’s action it is undoubtedly the rule that judgment against the debtor is conclusive evidence to establish the existence and amount of the loan from the debtor to the creditor. The cases upon this question are reviewed in Nicholas v. Lord (121 App. Div. 924; affd. by the Court of Appeals in 193 N. Y. 388); but what was established by the English judgment, and all that was established by it, was the existence and amount of the debt of the mortgagors to the mortgagee. In Nicholas v. Lord the debtor transferred certain property to trustees in trust, to pay any just debts which'the grantor then owed. The action was brought against the trustees to recover a debt which the debtor then owed, and which lias been established in an action in this State by a judgment in favor of the plaintiff against the transferrer of the property; and it was held that the recovery of that judgment was conclusive evidence as to the existence of the debt and its amount as against the trustee. Undoubtedly in an action to foreclose this mortgage
In my view this judgment is erroneous so far as it applies to the income accruing to the defendant Anna B. Hunt, for the reasons before stated, that her income is not charged with a lien in favor of the plaintiff. It is also erroneous in directing the trustees to pay out of the principal of the trust upon the death of Anna B. Hunt the amount of the debt due to the mortgagee, as it seems that the proper relief to which the plaintiff would be entitled would be a judgment foreclosing the mortgage and directing a sale of the mortgagor’s interest in the trust property. In an action to foreclose the mortgage there would be presented the question as to whether or not there ever was a valid mortgage or lien created upon this property, and I do not understand that the English judgment is sufficient to prove the actual existence and delivery of the mortgage. ' Upon the trial the defendants attempted to show that the mortgage was delivered to a solicitor for the purpose of obtaining a loan of money, but no loan of money was ever obtained and no money paid to the defendants by either the mortgagee or by the solicitor to whom it was delivered for the purpose of obtaining a loan of money. All of this testimony was excluded by the learned trial judge upon the ground that the English judgment was conclusive as to the delivery of the mortgage and that the plaintiff legally acquired title,thereto. Considering the form of the English judgment and the sole question presented to the court upon the trial of that action, I do not think that the force of the English judgment applied so as to estop the defendants from proving that there was never a valid delivery of the mortgage, and that as between the mortgagor and the mortgagee, it never became a valid and existing lien upon the mortgaged property. Full effect and credit can be given to the English judgment as establishing a common-law liability in favor of the plaintiff against the defendants, without extending the force of that judgment to the existence of a valid lien in favor of the creditor upon the defendants’ interest in this trust property. There is no question of estoppel, as the plain
We are then presented with the question as to how far the former decision of this court upon the appeal from the judgment overruling the demurrer to the complaint disposes of the questions heretofore discussed. I do not understand that the court determined the form of the judgment to which the plaintiff would be entitled if the facts alleged in the complaint were proved. Nor do I understand the court to have decided that this judgment was conclusive evidence of the validity of the mortgage and that it created a lien upon the defendants’ interest in the estate. The court did decide "that there was a good cause of action alleged in the complaint. The complaint alleged the execution and delivery of the mortgage and that the plaintiff was the owner and holder thereof. The questions that I have discussed, I do not think, therefore, were directly
My conclusion is that the judgment appealed from should be reversed and a new trial ordered.
Judgment modified as stated in opinion, and as modified affirmed, without costs. Settle order on notice.