80 N.J. Eq. 101 | New York Court of Chancery | 1912
On July 28th, 1901, David Ledwith died, leaving a son, James H. Ledwith, and leaving a will, which was admitted to probate by the surrogate of Essex county. It contains the following provisions, which are brought in question in this suit:
“Second. I give and bequeath to my executors hereinafter named the sum of twenty-five thousand dollars in trust to keep the same safely invested and to pay the income therefrom to my son, James Herbert Led-with during the term of his natural life, but I authorize and empower my said executors to terminate said trust and to pay to my said son the said sum of twenty-five thousand dollars whenever in the opinion of my executors his mental and physical condition is such that he is competent to attend to affairs. If, however, my said son shall die during the continuance of said trust and prior to the payment to him of said twenty-five thousand dollars, I direct that said sum of twenty-five thousand dollars shall be paid to his issue then living, and if there be no issue of my said son, then living, said sum of twenty-five thousand dollars shall fall back into and become part and parcel of my residuary estate and shall be disposed of as directed in the fourth clause, of this my will.”
*103 “Fourth. All the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situate, I give, devise and bequeath unto my niece Mary Crowly, daughter of my sister Mary, and now residing in Jefferson street, Orange, New Jersey. In case my said niece be not living at the time of my death, then I give, devise and bequeath my said residuary estate to her issue, and if, no issue of hers be then living, I give, devise and bequeath the same to my son James Herbert Ledwith, or if he be then dead, .to his issue then living, and if no issue of his be then living I direct that my said residuary estate shall be distributed according to the laws of the State of New Jersey in case of intestacy.”
By the will he named Richard O’Gorman and John T. Brennan as executors thereof, and'they now file their bill for the purpose of obtaining directions as to the distribution of the estate.
James H. Ledwith died without issue on August 16th, 1910; he was then a resident of New York; he left a will which was admitted to probate in that state by which he devised all his estate to his executors in trust, to pay to a Mrs. Eiker the sum of $1,200 per annum as long as she might live, in equal quarterly payments, out of the income derived therefrom, and to pay the balance to the defendants, Mary Lawson, Stella Lawson, Rosa Lawson and Noble Lawson, who were his cousins, or to such of them as might be living, in equal shares, at the death of Mrs. Eiker. The residuary legatee under David Ledwith’s will and the residuary legatees under James H. Ledwith’s will'are made defendants. All have answered except Noble Lawson; Mary Crowly claiming the fund as the residue of David Ledwith’s estate upon the ground that there was a direct devise of the sum to her by his will in case the complainants should not have paid the principal of the trust fund to James H. Ledwith in his lifetime, and the Lawsons claiming as residuary legatees of James H. Ledwith upon the ground that it was the duty of the executors under the circumstances to have paid the principal sum of the trust fund to James JEL Ledwith in his lifetime, and under the circumstances James H. Ledwith had the equitable title thereto which passed to them under his will at the time of his death. This question involves a construction of the'second paragraph of David Ledwith’s will, and a determination' of the inquiry whether it ever became the duty of the executors to transfer to
It may be said generally that a mere discretion is a mere power, but that an imperative discretion implies a trust. The general rules on the subject are found in 1 Perry Trusts (6th ed.) § 248, under the title "Trusts that arise by construction from powers.” They have likewise received considerable illustration in this state.- In Read v. Patterson, 44 N. J. Eq. (17 Stew.) 211, Mr. Justice Depue, speaking for the court of errors and appeals, stated the rule as follows: "Where the power given to trustees is wholly discretionary to do or not to do a particular thing in their discretion, the court has no jurisdiction to lay a command or prohibition upon the trustees as to the exercise of that power, provided their conduct be Iona fide and their determination is not influenced by improper motives. Where the power is coupled with a trust or duty the court will enforce a proper and timely exercise of the power, but if it be given upon a trust to be executed in the discretion or upon the judgment of the trustee, the court will not interfere with.the trustee’s discretion in executing the trust, unless he has exercised his discretion mala fide.” In that cáse there was a clear expression of the intention of the testator of an imperative
In Larkin v. Wikoff, 75 N. J. Eq. (5 Buch.) 462; affirmed, 77 N. J. Eq. (7 Buch.) 589, the opinion written by Vice-Chancellor, now Chancellor, Walker, illustrates the doctrine quite fully. There the controversy arose out of a deed of trust by which the donor conveyed real estate and gave personal property upon a trust to maintain a house of worship. It contained this provision: “Whenever from any cause it shall seem to the said trustees clearly expedient to discontinue the plan of holding the said property for said use as aforesaid, they, the said trustees, being the judges and fully authorized to decide such discontinuance upon all or any case whatever, then in such case of non-user, abandonment or discontinuance the said trustees shall hold the said land and all buildings thereon as the prop
On behalf of the residuary legatees under James H. Led-with’s will (the Lawsons) three cases were cited which I am constrained to hold have little or ho application to the question in hand. They are Weiland v. Townsend, 33 N. J. Eq. (6 Stew.) 393; Pedrick v. Pedrick, 48 N. J. Eq. (3 Dick.) 313, and Dillingham v. Martin, 61 N. J. Eq. (16 Dick.) 276, all cases in this court. In Weiland v. Townsend there was an imperative duty cast upon the trustees to provide for the support of members of the testator’s immediate family, but the amount was necessarily left to the discretion of the executor. It was there held in accordance with the rule which I have attempted to state that in cases of the failure of the trustee to act the court would execute the trust through a successor to be appointed by substituting equitable rules in place» of the arbitrary power. In Pedrick v. Pedrick there was a direction for the payment to the complainant (a son) by the executor of
In view of the rules laid down in Read v. Patterson, let us examine the provision of the will to ascertain what the duty of the executors was. They were—first, to set apart $35,000 and keep the same safely invested, and second', to pay the income therefrom to James H. Ledwith during the term of his natural life. These requirements were scrupulously complied with by them. Having created this situation, he next authorized his executors to terminate it and pay the corpus of the estate to the life tenant “whenever in the opinion of my executors his mental and physical condition is-such that he is competent to attend to affairs.” I find in this no* imperative direction io pay the principal sum' to* the life tenant. There is no construction of these words which could lead to that con
I must therefore hold that the discretion given by this will to the executors was a mere power to be exercised at their own will over which neither the life tenant nor this court could have exercised any authority; that there is no imperative trust for the breach of which an appeal could be had to this court, and that this court has no jurisdiction whatever in that matter.
Having decided in favor of the residuary legatee under the David Ledwith will, I do not feel it necessary to decide the question whether the Lawsons are in a position to lay claim to the fund or not. In their answer they claim that the trust under the David Ledwith will was terminated during the life of James II. Ledwith, and that before his death he became entitled to receive from the complainants as his absolute property the principal of the trust fund. The argument to support this view is that there came a time in the life of James II. Ledwith when as a matter of fact, and without reference to the thought of the executors on the subject, his mental and physical condition was such that he was competent "to attend to affairs,” whatever that may mean. It will be readily observed from, the views which have been already expressed that this provision of David Ledwith’s will was not automatic or self-executing. The trust could not determine itself; neither could James II. Led-with put an end to it by his will or by any other act. It re
My conclusion is that the executors must transfer the funds in their hands to the defendant Mary Orowly.