4 Denio 385 | N.Y. Sup. Ct. | 1847
The first inquiry is, what estate passed to Winthrop by the deed from Marston. To the extent of authorizing Winthrop to receive the rents, issues and profits to he applied by him for the support of Hannah Currie for and during her natural life, it was a trust recognized by the common law, and was moreover within the provisions of 1 R. S. 728, § 55, sub. 3, as amended by the act of 1830, chapter 320, section 10. (Gott v. Cook, 7 Paige, 521; Cru. Dig. tit. 12, Trust, ch. 1, §§ 12, 15.) Being an active trust, it vested the entire legal estate in the trustee determinable by the expiration of the term, or the death of Mrs. Currie, whichever should first happen. The rule at common law, as well as by the statute, is that the trustee takes that quantity of interest only which the purposes of the trust require, and the instrument creating it permits. The legal estate is in the trustee so long as the execution of the trust requires it, and no longer, and then it vests in the person beneficially entitled. (1 R. S. 728, §§ 61, 62; Doe v. Nicholls, 1 Barn. & Cress. 336; Doe v Edlin, 4
In the case under consideration, there is but a single trust created by the deed from Marston to Winthrop in reference to the term granted to him, namely—to receive the rents, issues and profits thereof, and apply them for the support and maintenance of Mrs. Currie for and during her natural life, upon the express condition that the same should not be sold during her natural life, but should be held for the said purpose. The words used do not necessarily carry an estate to him for the full period of the term, although they might have that effect, depending on the continuance of the life of Mrs. Currie to the termination of the lease. The further grant to Mary B. Mars-ton, immediately upon the death of Mrs. Currie, clearly evinces an intention that the trustee should not take an estate in the term in any event beyond the life of Mrs C„, and such I think was his estate, and that it ceased on the death of Mrs. C., she having died before the expiration of the term.
It is however supposed that the deed from Winthrop to Kip carried the entire estate in the term to him and his successors in office, although the death of Mrs. Currie intervened, and that the trust is not executed or satisfied until he conveys to Mary B. Marston, and therefore it is said that the plaintiff having the legal estate was entitled to recover. If it were conceded that the court of chancery had the power, it may be seen from the decree, that it has not exercised it, to alter, change or enlarge the trust conferred on Winthrop. It has merely transferred it as created by Marston to be executed by one of its officers. In reference to this, the decree is, that Winthrop “ do execute and deliver to the said assistant register some proper release and assignment of all his right and interest in the said house and lot of ground, to be prepared under the direction of one of the masters of this court, to be held by the said assistant register and his successors in office, to the uses and upon the trusts contained in the said deed executed by the said Thomas Mars-ton, bearing date the 26th day of February, 1811.” This is all which, as appears by the decree, was adjudged by the court
But if this view of the question should be incorrect, it cannot be doubted but that upon the death of Mrs. Currie, if any trust remained, it ceased to be active, and therefore it became executed by virtue of the statute, and the legal estate vested in Mary B. Marston. (1 R. S. 727, § 47; Welch v. Allen, 21 Wend. 147.)
The court below erred, as I think, in its charge to the jury.
Judgment reversed.