| N.Y. Sup. Ct. | May 14, 1860
The real and personal estate of the testatrix Elizabeth Van Wyck were to be converted into money by her executors, and after the payment of debts, funeral expenses and expenses of administration, the proceeds are by the will disposed of as follows : One third part thereof is given to Elizabeth, wife of the plaintiff Marius Schoonmaker. One third part is given to the executor, Marius Schoonmaker, in trust for Sarah D. wife of Cornelius Van Santvoord, and her children. The remaining third part is directed to be put at interest on bond and mortgage, by her executors, on real estate, or otherwise securely invested, during the lifetime of the defendant Isaac I. Van Wyck, and the net annual income thereof paid over to him annually during his life, when received by her executors, with remainder Over of three-fourths thereof to her nephews Frederick E. Westbrook, Joseph Jackson Van Wyck, and Sidney Van Wyck ; and of one-fourth part thereof to her surviving executor, in trust for her nephew, Isaac V. W. Westbrook. There are some other limitations
The inventory of the personal estate was taken on the 10th day of April, 1845, and the estimated value of the Archibald Watt mortgage was $1612.31, that being the amount of the principal and interest. Had this money been collected by the executors within the eighteen months given by the statute for the settlement and distribution of the estate, it would have constituted a portión of the fund to be divided and distributed as principal, and no part of it as income ; that is to say, one third part of it would have been invested at interest by the executors under the third provision of the will, in the order in which I have stated them, and the net annual income paid to Isaac L Yan Wyck annually during his life, as such income was received by the executors. The executors were trustees, and this mortgage, and whatever was realized by them, was trust property, to be applied to the uses of the will. The collection of the money might be procrastinated and postponed to a distant day. This, however, could not change the rights of the cestuis que trust, or the obligation of the trustees to devote the proceeds of the chose in action to the uses which the testatrix had indicated by her will. This mortgage, it seems, the executors proceeded to foreclose, but failing to find a purchaser for the mortgaged premises, at their fair value, the executors themselves became the purchasers, and acquired the title of the mortgagor, under the master’s deed of the date of the 18 th of April, 1846. The premises consisted of fifteen lots of ground at Harlem, in the city of Hew York, and the price at which they were struck off to the executors at the sale was $750. This sale effected no change in the nature of the property so far as the executors, distributees and cestuis que trust were concerned, and the sum at which the property was bid in is of no moment in the present litigation. Although the title was absolute in the trustees, they held it precisely as they held the mortgage security. In April, 1859, the fifteen lots of land were sold by the execu
Judgment will be entered in conformity with this opinion, and the costs of the parties will be paid out of the fund.
Lott, Emott and Brown, Justices.]