9 Barb. 516 | N.Y. Sup. Ct. | 1850
Mary Sutphen derived title to the property in question from her husband, Matthew L. Sutphen, by his will, dated the 28th of January, 1827. On the 26th of April, 1830, she executed her last will and testament, which contained the following clauses: “ I give and devise unto my brother Martin
It is plain, and indeed it is conceded by the counsel for the plaintiff, that the declaration in trust in the will of Mary Sutphen is void as an express trust under the 49th section. It does not come within the first subdivision of the 55th section. ¡Nor literally within the second subdivision; nor within the third subdivision, viz. to receive the rents and profits of lands and apply them to the education and support, or either, of any person, &c. or to the use of any person, as amended by the act of 1830, or to receive the rents and profits of land and pay them over to the beneficiary, which has been decided by the court of appeals as coming within this last subdivision, and as being therefore valid. (2 Comst. 297.) But it is an estate to “ be held for the benefit, and to be used and expended for the support, maintenance and education of her infant children,” which would seem to imply the power to sell, mortgage and lease the lands for those objects. For “ Quando aliquid conceditur, conceditur id sine quo illud fieri non possit,” (Willes, 197,1 Sound. 323,) thus combining the power expressed in the second subdivision to carry out the objects contemplated in the third subdivision. But whether the clauses in this will create an express trust within the 55th section, seems to be an inquiry more curious than useful, so far as this case is concerned; for by the 58th section it is provided that where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the- performance of any act which may be lawfully
A power in trust is a mere authority or right to limit a use, while an estate in trust is an estate or interest in the subject. A trustee is always invested with the legal estate, but this is not necessary with respect to the donee of the power. In the case of a power in trust there is always a person other than the donee or grantee of the power, which person is called the appointee, answering to the cestui que trust in a simple trust. (5 Barb. S. C. Rep. 652.) Every estate and interest not embraced in an express trust, and not otherwise disposed of,
By the will of Mary Sutphen this farm is devised to the defendant in trust for these children, their and each of their heirs and assigns forever. The defendant cannot lay claim to the residue after the infant children have been properly supported, maintained and educated. It is one of the most familiar principles of equity that no one shall take advantage of a fiduciary relation between himself and another, to make gain to himself. When the defendant assumed the appointment of guardian and trustee he assumed also the duties and responsibilities of those offices. (5 Chit. 409.) The children have chosen to affirm the authority on which he professed to act, and he will not be allowed now to deny it. A trustee cannot be permitted to purchase trust property. An agent dealing in behalf of his principal, professing to settle and compromise a claim in behalf of his principal, can not take the entire fruits of the negotiation to his own use. (6 Paige, 359.) This was held where the declaration of the trust did not appear upon the face of the instrument, but in a case where to fulfil the demands of justice parol evidence was allowed, to prove the intention of the testator. (5 Barb. S. C. Rep. 58.)
When the purposes for which an express trust has been created shall have ceased, the estate of the trustees shall also cease. (1 R. S. 730, § 67. 2 Sand. Ch. 296.)
The purposes of the estate in trust or power in trust in respect to th‘e plaintiff ceased upon her marriage and arriving at the age of'twenty-one years. If any interest existed in Mary Sutphen" undisposed of, either in remainder or reversion, by her decease the same became united to the beneficial estate of the daughter as heir at law, who is now seised of the same in fee. (4 Paige, 404.) And by the 47th section of the revised statutes, (Vol. 1, p. 727,) every person who is entitled to the actual possession of lands, and to the receipt of the rents and profits thereof in law or equity, is deemed to have a legal estate therein, commensurate with his beneficial interest in the premises, except in those cases where the estate of the trustee is connected with
It is said by the counsel for the defendants, that the bill, in praying for an account and for partition, is multifarious, and that the relative situation of the parties is such as not to entitle the plaintiff to ask for partition. In the case of Hosford v. Merwin, (5 Barb. S. C. Rep. 54, 62,) there was a prayer to account and for partition, and the defendant was in possession claiming to hold adversely. The court say, this, as a general rule, would be sufficient ground for denying the application; but when the question arises upon an equitable title set up by either of the parties, the reason of the rule fails. The court will not entertain a bill for partition when the legal title is disputed or doubtful, because a court of law is the proper tribunal to determine such questions. But when the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties. Courts of equity have concurrent jurisdiction with courts of law to decree partition and sales of land. (2 R. S. 329, § 79. 1 Sand. Ch. 201. 4 Barb. S. C. Rep. 229.) Again; if the complainant has been ousted of his possession, or the premises are held adversely, the defendant should set up that defense by plea or answer. (3 Paige, 245, 6.) There is no evidence of ouster or adverse holding in this case. Indeed the purchase of the interests of the other heirs is rather a recognition by the defei of the claim of the plaintiff, to some extent.
It is insisted by the defendant, that he should be allowel account against Matthew L. Sutphen, and also against Sutphen, which accrued after the death of her husband anípr^j^yH vious to her own death; and also should be allowed one-part of the aggregate expense laid out upon the five infant children, irrespective of the amount laid out for the plaintiff.
How much property came into the defendant’s hands from Mary Sutphen, besides the farm, does not exactly appear, though it probably was not of much value. I think the farm itself
I have read through the large volume of evidence in this case; and looking at the testimony of James Sutphen, who had the best means of knowledge, together with the testimony of Olive Palmer, Jane Hunt, and Almira Merry, as well as other testimony bearing upon the question, I think the plaintiff ought to be charged at least five shillings a week for three years, which would amount to about $100, saying nothing about her clothes and schooling. From all the testimony in the case I should put the value of the farm at $5222, and the annual rent at $239. I have arrived at this conclusion not without some hesitation, after a careful examination of the testimony; for I would not hastily disturb the report of the learned referee upon questions of fact; and I am well aware that a person who hears the testimony is generally better able to estimate its proper weight and effect than one who reads it on paper. But the authorities to which I am referred by the counsel for the plaintiff do not convince me that I am entirely precluded from correcting the report in these particulars. Instead therefore of $6325, the worth of the farm should be put at $5222, and instead of $250, the annual rent should be $239. According to my computation, after allowing the defendant $100, and the proper commissions, the sum due the plaintiff is $71,03.
Let a decree therefore be entered that the defendant pay the plaintiff $71,03, in twenty days after due service of notice of
Let the report, thus modified, be confirmed.
On appeal, the foregoing decision was affirmed at the general ■ term held at Ithaca, in the 6th district, in September, 1851, by Justices Shankland, Mason and Monson.