58 N.Y.S. 885 | N.Y. App. Div. | 1899
This controversy is as to the interpretation, validity and effect of certain provisions of the will of John P. Rolfe, who died at the city of Brooklyn in January, 1895, possessed of a personal estate
“ 5. To Enriquita Emma, daughter of my said brother, deceased, now wife of Winfield Scott Shrigley, of Valparaiso, Chili, one-fifth (1 /5) part of such property; but it is my will and I hereby direct that such part shall be paid to and held in trust by her brothers to apply the same and such parts thereof as they may deem proper to the separate use of their sister.”
Since the death of the testator the brother and sister mentioned in the will have died, and the present controversy is as to the right of Mrs. Shrigley to require payment to her personally of her share in the estate.
The learned counsel for Mrs. Shrigley assails the "validity of the trust attempted to be created in her share on the ground that it suspends the absolute ownership of that share for three lives, to wit, those of the testator’s brother and sister and that of Mrs. Shrigley herself. The foundation of this claim is that the will creates a trust in favor of the testator’s surviving brother and sister during their joint lives; for if the interests given to those beneficiaries are legal and not equitable, the bequest in their favor does not suspend the ownership of the property for any period. We are entirely clear that the will creates no trust in favor of the brother and sister. There is no express gift to the executors, and no direction for them to apply the income to the use of the legatees. The bequest of the interest and income of the property during life is the bequest of a life estate simply; and the testator (a lawyer of great experience in the preparation of wills and management of estates) fully appreciated the nature of the estate given, for in the gift of the remainder to his nephews and nieces he characterizes the precedent gift as “ such life estate.” It is true that the executors would not be justified in paying the estate over to the life tenants without security, ■and it would be their duty to invest the principal and pay the beneficiaries only the income. But this is the case with every gift of a life estate in a fund, yet a legal life estate, susceptible of alienation
We now come to the question of the validity and effect of the trust created in the share of Mrs. Shrigley, considered apart from the previous provisions of the will. We first find an absolute and present gift to this defendant, subject only to the previous life estates. This gift is followed by a direction that the share be paid to and held in trust by her brothers “ to apply the same and such parts thereof as they may deem proper to the separate use of their sister.” It is contended that this limitation imposed on the gift to Mrs. Shrigley is repugnant to the gift and, therefore, void. Such is our judgment. (2 Jarm. Wills, 854, 855.) The trust is not to apply the income of the share to the use of the legatee, but to apply the share itself or such parts thereof as the trustees may deem proper. Doubtless it would be the duty of the trustees to invest the fund and to apply the interest or income it might earn, together with the principal, to the use of the legatee. But the collection of income is a mere incident of the trust, and would not constitute the trust one to collect the income and profits and apply them to the use of a person, within the provisions of the Revised Statutes. The trust can cut down the previous gift only so far as it is consistent witn it, and that gift is absolute to the legatee with no gift over. The duration of the trust is by its nature limited to the life of Mrs. Shrigley, and, therefore, the trustees must either apply the whole share to her use during her lifetime, or at her death pay over the
But if we have erred in our viexv of the character of this trust, it xvill, under the present law, make no difference in the result. The construction of the xvill most unfavorable to the claim of the defendant would be to regard the trust as one to invest the fund and apply the income arising therefrom to the use of Mrs. Shrigley during life, with poxver in the trustees, in their discretion, to apply the principal or parts thereof to the same purpose. There is no possible view of the case, hoxvever, which would defeat Mrs. Shrigley’s claim to the remainder in the fund after the termination of the trust. Since the enactment of the Revised Statutes, and until 1893, the income from such a trust was inalienable by the beneficiary, and
Our view of the effect of the statute of 1893 is not in conflict with the decision in Oviatt v. Hopkins (20 App. Div. 168). In that case, the trust having been created before the enactment of the statute, it was held that the trust could not be abrogated by a conveyance from the i*emainderman to the equitable life tenant. The decision proceeded on the ground that property rights could not be destroyed by subsequent legislatiozz. We express zzo opizzion on the questiozi whether there is any property right, in the true sezise of the tezun, in a trustee, which precludes the State fz'orn permitting, by subsequent statute, the z*eal party in intez-est — the beneficiary — to abrogate the trust and take the pz-operty. Hez-e the law of 1893 was in force at the time of the testator’s death. The tenure of pz’operty, whether real or personal, and the character azid nature of the estates that may be created therein, have always been the subject of legislative aetiorz. The Legislatzire zniglzt forbid the creation of any trust estates in property, or the suspension of the power of alienation for any period whatever, as it has foz'bidden the suspension of the power-of alienation beyond two lives in being. At the time this will took effect it was the law of trusts to apply the income or rents and profits of a trust estate that a trust might be terminated in certain contingencies at the election and by the action of the cestui que trust. When the testator
There should be judgment in favor of the defendant Shrigley, that the executors pay to her one-fifth of the residuary estate of the testator, upon her executing a deed as prescribed in chapter 452 of the Laws of 1893, the costs of all parties to be paid out of the fund
All concurred.
Judgment for defendant ■ Shrigley on agreed statement of facts, that the executors pay to her one-fifth of the residuary estate of the deceased upon her executing a deed as prescribed in chapter 452 of the Laws of 1893, costs of all parties to be paid out of the fund.