88 N.Y.S. 916 | N.Y. App. Div. | 1904
The question to be determined is whether the plaintiff can convey a good and merchantable title to the premises which she has undertaken to sell under a contract set forth in the agreed • case. Francis Fely died on the 27th day of. January, 1895, leaving a will which was duly admitted to probate on the 11th day of February, 1895. Arthur J. Heaney was named as executor, and was, with the Kings County Trust Company, appointed trustee to carry out certain provisions of the will. The trust company refused to accept the trust, and Mr. Heaney. became the sole acting trustee and executor. In his latter capacity Mr. Heaney received two bonds
The will of Francis Fely, after revoking all former wills and providing for the payment of his debts, his funeral expenses, and making a number of small personal bequests of' money, provides: “I also give and bequeath to my said wife, JosephineM. Fely, the equal one-third of the balance of my personal estate to have and to hold the same to her own use, benefit and behoof forever.” The next paragraph provides: “ All the rest, residue and remainder' of my estate, real and personal, I give, devise and bequeath to my Trustees, hereinafter named, in trust to and for the following uses and purposes, to wit: 1st. To invest and keep invested my personal estate in secure Bonds and Mortgages upon improved real estate situate in the City of Brooklyn, aforesaid. 2nd. To collect and receive all rents, issues and profits arising from my estate, both real and personal, and to pay over the net balance thereof as. follows, to wit: An equal one-third of said net balance to my said wife, Josephine M. Fely, semi-annually during her natural life, to-have and to' hold the same to and for her own use, benefit and
The evident purpose of this will, after paying the specific bequests and setting aside one-third of the personal estate, as it existed at the time of testator’s death, for the benefit of his widow, was to place the remainder, whether consisting of real or personal property, in the control of his trustees and their successors for the purpose of carrying out, to the best possible advantage, the objects of the trust. The testator’s widow is now dead,, the executor of the estate has made his accounting and been discharged, and it may be presumed that the one-third of the -income of the personal estate was turned over to the widow before the foreclosure of the mortgage, under which the plaintiff derives title, and that the other duties of the executor in reference to the specific bequests had been discharged. The executor of the estate, acting within the line of his duty, foreclosed the mortgage and took title to the property, and whether it retained its character as personal property, or was by this action transformed into real estate, is not very material; it all belonged to the residuary estate, which was vested' in the trustees at the close of the term of administration, and these trustees were authorized “ in order to carry into effect the provisions of this my will,” to sell and convey any or all of the real estate. By the 1st clause of the 4th paragraph of
But it is urged that Mrs. Sweet, being one of the beneficiaries of the trust provision, cannot act as trustee as the successor to the original trustees nominated and appointed by the will. It is undoubtedly true that where the sole acting trustee is likewise the sole beneficiary, there is an incompatibility in the two relations (Losey v. Stanley, 147 N. Y. 560, 569), but Mrs. Sweet is not the sole beneficiary. The trust is of all the residuary estate of the testator, whether of real or personal propérty, the rents, issues and profits of which are to be collected and paid over to Mrs. Sweet and her brothér during their natural lives, and upon their death to go to the surviving children. Mrs. Sweet, on being appointed trustee, took the whole trust estate (Losey v. Stanley, supra); she took an indivisible fund, which she could neither sell nor incumber in any way to affect or alter the interests of the remaindermen, except as specially provided in the will (Losey v. Stanley, supra, 568), and' this was limited by the testator to the sale of the personal property and real estate, atid the reinvestment in a certain line of securities. As such trustee she had clear authority to execute the trust provision as to one-half of the trust property, and in this respect she was subject to no .infirmity whatever. The authority was to sell any or all of the real estate and to turn the proceeds over to the residuary personal estate, thus keeping the original fund intact. She could not save out her share from the trust estate in this land any more than she could save out that of.her brother; the estate vesting in the trustee is the whole trust estate, and her interest, as well as the equitable interest of the other beneficiaries in the trust, pervades every part of the property and cannot be separated. As the trust was good in
Judgment for specific performance to the plaintiff.
All concurred.
The submission having been corrected in accordance with our decision of June 3, 1904,. judgment is directed in favor of the plaintiff in accordance with the terms of the submission, without costs.