108 N.Y.S. 775 | N.Y. App. Div. | 1908
Lead Opinion
The only question involved in this appeal is whether or not the plaintiff Van Norden Trust Company, as substituted trustee under the will of Sarah W. F. Smith, can exercise the discretionary power vested by the will in the trustees named therein,'to apply a portion of the capital of the trust fund to the use of the plaintiff Alice L. S. Smith. It appeared to the court below, and appears- to us, that the circumstances of the case are such that -it would be a wise exercise of discretion to so apply a portion of the principal of the estate, if any discretion so to do has passed to the present substituted trustee. The will named as executors Thomas S. Mount and Morgan Blydenburgh, and to them was left in trust substantially all of the estate of the testatrix, with instructions to apply the income, rents, issues and profits to the use, maintenance and support of the testatrix’s husband Nathaniel Smith and her daughter Alice (the plaintiff) for and during the life of the survivors of them. Power was given to the daughter to dispose' off the estate by a last will and . testament. The 4th clause of the will provided as follows: “ I hereby authorize and empower my said Executors,, or such of them as shall qualify, in their discretion and with the approval of my said daughter Alice expressed in writing, either to sell or to mortgage, or both,'the whole or any part or parts of my said estate as they may deem necessary from time to time, and to invest the proceeds arising therefrom and to pay and apply the income thereof towards-the use, maintenance and support of my said daughter Alice and my said husband Nathaniel as aforesaid, with' full power, to my said executors to apply such portion of the capital of the trust funds as they may deem advisable to -the use of my said daughter and' husband.”
The learned justice who wrote at Special Term has carefully collated a number of authorities to support the well-established rule that when a power given to trustees is of a nature indicating that the donor of the power intended to repose a personal confidence in the donee of the power it will be held that the power does not,
• The judgment should be affirmed, with costs to all parties separately appearing and filing briefs, payable out of the estate.
Patterson, P-. J., and- Clarke, J., concurred; Ingraham and Houghton, JJ., dissented.
Dissenting Opinion
The question, arises under the 4th clause of the will of Sarah W. F. Smith, deceased. The will is dated the 12th day of December, 1895, with a codicil dated the 6th of November, 1896. By the will substantially all of the testatrix’s property was left to her executors in trust, the income therefrom to be applied “ to the use, maintenance and support of my said daughter Alice, and my said, husband Nathaniel Smith, for and during the life of the survivor of them with a remainder over to "such persons as her daughter Alice should designate by a last will and testament; and a further remainder in case Alice should neglect to dispose of the said property by will to Alice’s children, if she had any, or if not, to the testatrix’s two brothers. By the 4th clause of the will the executors, with the approval of Alice, were authorized to sell or mortgage the testatrix’s real estate, “ with full power to my said executors to apply such portion of the capital of the trust funds as they may deem' advisable to the use of my said daughter and husband.” After the- date of this will, and before the execution of the codicil on the Gtli day of November, 1896, the testatrix’s husband died, leaving her daughter Alice her sole next of kin and heir at law. Alice is unmarried and has no children. The will was admitted to probate and both executors qualified. Subsequently one of the executors died, whereupon the surviving executor accounted before the surrogate, and ■ a decree was on May 27, 1901, entered directing him to transfer to himself as sole surviving trustee all of the property of the testatrix. On the 13th day of October, 1902, the sole surviving trustee resigned, and the plaintiff, Van Norden Trust Company of the city of New York, was appointed by the surrogate as his successor, and as trustee under the last will and testament of Sarah W. F. Smith, deceased, “ with all the powers of an original trustee as fully as if - it had been mentioned in said will in place of said Morgan Blydenburgh.” The estate of the testatrix consisted of about $20,000 personal property, and ten acres of land at Stony Brook, Suffolk county, N. Y. This real property has a present value of about $30,000, but produced no income. The income from the personal property was about $76 per month. Alice has no other income, except what she received from this trust estate, and the amount of income that she
The Special Term in a careful opinion, while recognizing the justice of the plaintiff’s claim, said: “ The meritorious attitude of the cestui que trust. toward those who may succeed her in the enjoyment of the trust estate only adds to my embarrassment in deciding adversely to her very reasonable request, and I reluctantly reach the conclusion that the present trustee is without authority to apply any part of the corpus of the trust estate to her use.” (56 Mise. Rep. 196.) It would thus appear that both the trustee and the-court below considered that the application of the cestui que trust was quite reasonable, and had the. original trustees remained in charge of the estate there would have been no objection to making the advance, but that a-substituted trustee had no power under the will to exercise the discretion which was vested in the original trustee ; and this is based upon the principle that “ ‘ whenever power is of a kind that indicates a personal confidence it must prima facie be understood to be confined to the individual to whom it is given, and it will not, except by express words, pass to others, to whom by legal transmission the same character may happen to belong.’ ” With this principle we are not at all inclined to disagree; but in considering whether it is. applicable to this case, it must depend upon whether it was the intention of the testatrix that the exercise of this power should be limited to the trustees that she named, for, after all, this question, like all others that relate to-the construction of a will, is to be determined by the intention of the testator. The testatrix had a small estate which at her death- did not' exceed $30,000. When she made the will she had a husband and only child, and the will discloses' an intention to devote her estate to- the support .and maintenance of her husband and child. She recognized that the income from such an estate might be insufficient for their support and, hence, she authorized her executors to apply “such, portion of .the capital of the trust ■ funds as they may deem advisable to the use of my said daughter and husband.” The husband died before
"While it is plain that a trustee Avould have to exercise this power personally and could not delegate it, that principle does not at all affect the question here to be determined, that is, whether the testatrix intended to limit the exercise of this power to the original trustees named in the Avill, or to the trustees of the estate for the time being. There is coupled Avitli this power a poAver of sale of the real property of the testatrix. By the samé clause of the will she authorizes and empowers her “said executors, or such of them as shall qualify, in their discretion and with the approval of my said daughter Alice, expressed in Avriting, either to sell or to mortgage, of both, the whole or any part or -parts of my said estate as they
This conclusion, I think, is sustained by the authorities in this State. In Rogers v. Rogers (111 N. Y. 228) all the rest, residue and remainder of the testator’s estate was given to trustees upon trust to pay-to the testator’s wife during her natural life, or until she should marry again, or until the youngest of.her living children should attain the age of twenty-one years, so much of the income of his estate as should be necessary for the.comfortable support of herself and the testator’s mother and the maintenance and education of his children. He then authorized his executors and executrix to apply to. that purpose so much of the principal sum invested as might be necessary to make up the deficiency. It was held that under such a trust, where the trustees other than the beneficiaries may die or decline to act, the court' has power to supply their places, or, if needs be, to take upon itself- the execution of the trust, so far as it ought not to. be executed by the trustee who is also beneficiary; that the court may appoint a new trustee or might itself exercise the discretion. In Lahey v. Kortright (132 N. Y. 450) it was said: “ But by reference to the provisions of the will, as well that creating the power of sale as other portions, to ascertain
The case of Hull v. Hull (24 N. Y. 647) is not, as I look at it, inconsistent with this view. The question before the court in that case was as to whether a substituted trustee could exercise the power granted to the trustees named in the will, and it was held that they
I think, therefore, that it was the intention of this testatrix that this power should be exercised during the continuance of the trust which was to last during the life of the testatrix’s daughter Alice, and that this clearly defined intention could only be effectuated by the construction that the discretion vested in the executors was to be executed by the trustee of the trust during its continuance and
It follows that the judgment appealed from must be reversed and judgment entered in accordance with the views here expressed, with costs to the appellants to be paid out of the estate.
Houghton, J., concurred.
Judgment affirmed, with costs to all parties separately appearing and filing briefs, payable out of the estate.