90 N.Y.S. 469 | N.Y. App. Div. | 1904
The plaintiff asks for an adjudication terminating a trust created by her by deed on October 3, 1873, in the nature of a marriage settlement. The contract was executed by her and her intended husband and by the defendant as trustee. The marriage took place the next day and has been without issue. The plaintiff’s husband died on November 5, 1899. No child was ever born to the plaintiff. The property of the trust was stocks, bonds and other securities belonging to the plaintiff, and the deed recited that in contempla
No definite period is designated in the deed for the continuance of the plaintiff’s use of the income, other than the recital that the property placed in trust should not be subject to her disposal during the marriage, and as her husband in no event took any right or interest in the property, and no express provision was made even for possible issue, I am of the opinion that the trust was intended to continue only during coverture, and that it ceased with the termination of' the marriage. No rights of any kind have intervened, and no reason is or can be suggested why the plaintiff should not now have the custody and control of her property.
The Real Property Law (Laws of 1896, chap. 547) provides as follows : “ § 89. When estate of trustee ceases.— When the purpose for which an express trust is created ceases, the estate of the trustee shall also cease.” In Perry on Trusts (Yol. 1 [5th ed.], § 104) it is said that “where the trust does not break the natural course of descent of the property, and is not needed for the protection of the life cestui, who is the grantor, equity will, on application of the cestui, terminate the trust and decree a conveyance.” The author cites in support of the tenet the case of Nightingale v. Nightingale (13 R. I. 113) where the trust was made by a woman before marriage for herself for life with remainder to her appointees by will, or her heirs at law, if she died intestate. After marriage and during coverture she applied for a conveyance and discharge of the trust, and as the natural descent was not broken, and the laws of the State sufficiently protected married women, the request was granted.
McFarland's Appeal (4 Atl. Rep. [Penn. Sup. Ct.] 348) pre
To the same effect are Rogers v. Cunningham (51 Ga. 40) ; Wilkinson v. Gibson (L. R. 4 Eq. Cas. 162); Swift v. Wenman (10 id. 15), and Russell v. Dowding (14 id. 421).
The marriage settlement in Borland v. Welch (162 N. Y. 104) was essentially different in that the settler there made provision for a possible subsequent or second marriage. The court said (p. 108): “ The reference to a subsequent marriage doubtless shows that the trust was not to terminate by the death of the husband prior to that of the wife.” The court fully recognized, however, that the main object of ante-nuptial settlements was to avoid the husband’s control
In this case it seems clear that the purpose of the settlement was only to tie up the principal during the contemplated marriage, and that the intention of the parties was to terminate the trust on the death of the husband during the life of the wife; and it follows that the plaintiff is entitled to judgment as prayed for.
All concurred.
Judgment directed for plaintiff in accordance with the terms of the submission, without costs.