80 A.D. 178 | N.Y. App. Div. | 1903
The will now before us is inartificially drawn and in some of its provisions is obscure and vague, notwithstanding which we think that the testator’s intention as to the disposition of his property may be fully ascertained and made .effectual. The construction given by the learned justice at the Special Term to the various provisions which were drawn into controversy is, in the main and as to the more important subjects involved, in accordance with the views we entertain after a careful consideration of the arguments made at the bar by the several counsel who discussed the case before us. It will suffice for the proper decision of the appeals that we state separately, but briefly, the conclusions at which we have arrived concerning the subjects of disputed construction as they were presented to and passed upon by the court below.
First. It is quite clear that the will is to be regarded in its entirety as one of personal property. The testator expressly declared that all of his estate and property of every kind and description and wheresoever situate, was given to his executors in trust “to take the custody and possession thereof and sell and dispose of the same at such times and in such manner as they shall deem fit or proper, and convert the same into money and pay over and distribute the same as follows: ” (then making specific disposition). It will be seen from the whole will that there is no gift of anything, except of the proceeds of sale of all the testator’s real and personal property. It is the blended proceeds that are ultimately given by the testator, some parts absolutely and some in trust. There is no ambiguity in this provision of the will; the direction to sell is imperative. No discretion is left to the executors respecting a sale, except as to time. Here the intention was manifest that the money to be realized on a sale of the testator’s real property, combined with that arising from the sale of his personal estate, should be distributed among the recipients of his bounty, and the evidence shows that the situation of his estate at the time of his death was such that the general scheme of the will and the necessary administration of the estate under that scheme required the construction given by the court below to the clause referred to. That clause does not confer an authority only, but as said before gives a positive direction, and the cases cited in the opinion of the
Second. The trust in the executors to sell and convert the real estate into money and pay over and distribute the proceeds is a valid express trust to sell land for the benefit of legatees under subdivision 2 of section 55 of the Statute of Uses and Trusts, now section 76 of the Real Property Law (Laws of 1896, chap. 547.) The executors are not clothed with a mere power in trust, the land itself passing to the heirs; they are expressly authorized until a sale is made *c to lease or let the same or any part thereof for such terms as they shall see fit.” Thus they are empowered by implication to take the rents and profits until a sale is made. As is said in Morse v. Morse (85 N. Y. 58, 59), “ a trust to sell, mortgage or lease lands for the benefit of legatees or to receive the rents and profits of lands and apply them to the use of any person during the life of such person or for any shorter period, are among the express trusts authorized by the statute. (1 R. S. 728, § 55.) It is clear that the power of sale in the will in question was conferred for the purpose of conversion and with a view to the distribution of the proceeds of the sale of the land among the testator’s children. This is not expressly declared, but the prior gift of the whole residuary estate to them, followed by the power of sale to the executors, permits of no other inference. (Fisher v. Banta, 66 N. Y. 468 ; Marsh v. Wheeler, 2 Edw. Ch. 156; Kinnier v. Rogers, 42 N. Y. 531.) The direction to sell was imperative and operated in equity as a conversion of the land into money. It was the intention of the testator that the beneficiaries should receive their respective interests in money and not in land.” We concur with the court below that “ since the will worked an immediate equitable conversion of all the testator’s real estate into personalty, the trusts set up by the will are to be considered as trusts of personal property, which are not fettered by the limitations prescribed for trusts of real estate, but may be created for any purpose not unlawful, subject only to the law against perpetuities. (Cochrane v. Schell, 140 N. Y. 516, 534.)” There is no invalid suspension of the power of alienation of real estate or of the absolute ownership of personal property. Neither is suspended for more than two lives in being. All the specific legacies are payable to the legatees personally, except as otherwise
Third. We agree with the conclusion of the court below that the specific legacies given in the 1st to the 9th clauses of the will, inclusive, drew interest only from one year after the grant of letters testamentary, but we do not concur in the conclusion reached that each of the specific sums of $50,000 mentioned in clauses 1, 3 and 4 of the will is to be deemed a part of the share and interest of the defendants Cornelia H. Hughes, Edward B. Hilton and Albert B. Hilton respectively, and is “ subject to the limitations placed upon each such share and interest.” On the contrary, we are of the
Fourth. We adopt the construction given by the justice at Special Term to the provision of the will of the testator relating to the share in his estate intended for the benefit of his daughter Mrs. Hughes. That share was not given in trust. No trustee was appointed, and it seems quite plain that it was the intention of the testator that his daughter should not only have the use of the jiroduct or income of the two equal twelfth parts of the residuary estate, but that she might draw upon the capital of these shares. There is nothing in the provision under consideration suggesting that any one should hold them in trust or receive or pay over the
Fifth. It is unnecessary to consider the provision of the will respecting the share in the residuary estate given to the testator’s son Edward, as such son does not appeal from the judgment. Concerning the share given to the testator’s son Albert, a trust is specifically created in that share, and the executors are the trustees of it. They are authorized and empowered by the testator to retain and withhold the same in trust, to pay out or pay over or apply so much and such parts thereof as they may from time to time consider necessary, proper or expedient for the support and maintenance of the said Albert and his children during his lifetime, and on his death to pay over and distribute such part of his share as shall be then remaining in the hands of the executors to his wife and their children or to such of them as shall be then living, in equal shares and proportions, share and share alike. This is to be treated as a trust of personal property. As said by the court below, it is true that the will does not mention the income derived from this share, but the right of the executors or trustees to receive that income inheres in their ownership of the shares in trust and arises by necessary implication, and further “ they are not confined to paying over either principal or income to Albert or his family, but may pay it out or apply it not only for his support and maintenance, but for that of his wife and children, and these applications of the share are to be made as to the executors should seem necessary, proper and expedient. If for any reason the executors should not deem it necessary, proper or expedient to pay over or apply the whole income of the estate for the support and maintenance of Albert himself, there would be no unlawful accumulation of income, for his wife and children would undoubtedly be entitled to the unapplied balance.” If the rents and profits are not disposed of, they go to the wife and children of Albert as the persons presumptively entitled to the next eventual estate.
Sixth. The question arising under the 9th clause of the will of the testator, relating to the fund of $25,000, appointed by the executors for the benefit of Agnes S. Hilton, was properly disposed
Seventh. The court below was not authorized in this action to hold that the executors were empowered to employ and pay one of themselves as an agent of the estate. That subject does not arise in an action for the construction of the will, because it relates simply to the propriety of the employment of a particular person, and not
On a careful consideration of the whole will and of the findings of the court below, and of the provisions of the judgment, we find nothing further requiring comment, and our conclusion is that the judgment appealed from should be modified to conform to the views hereinabove expressed, and as modified it should be affirmed. Inasmuch as all the questions that have been raised and discussed have fairly arisen and required judicial settlement, the costs of all parties should be borne by the estate.
O’Brien, McLaughlin and Laughlin, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to all parties payable out of the estate.