69 N.Y.S. 223 | N.Y. App. Div. | 1901
In arriving at a proper construction of this will I purpose, first, to examine the same and ascertain the rights of the parties thereunder upon the assumption that the real property devised passed thereby, as such, and that its character was not changed by the terms of the will. This necessarily involves a construction of the power and estates in trust created by the will.
' By the 3d clause of the will, after devising and bequeathing the residuary estate to his executors, in trust, the testator provided as follows: “ 1st. In trust, to divide * * * and to allof to my children * * * each, one of said five parts or shares.” This provision, standing alonej creates a power in trust, to be exercised in connection with the estate in trust created by the preceding paragraph;
By the succeeding paragraph a limitation is placed upon the duration of the trust estates, as follows: “ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the case of my son Robert George Remsen the net annual ■ income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support, for and during his life, and in, the case of my other son Charles, and of my daugh
The trust estates were limited, however, to the period of the life of each child to whom a share or part was to be allotted. Therefore, upon the death of Robert George Remsen, the trust estate created for the period of his life would terminate; and the provision of the will is, “ on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters, including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita and not per stirpes.”
Treating this as a devise of remainders over to grandchildren, as we think it must be treated, the trust estate for the life of Robert having terminated with his death, intestate and without issue, the grandchildren became seized in fee of undivided interests in Robert’s share. This gave them an estate in fee as tenants in common of Robert’s undivided interest in the land; and by virtue of the express provisions of the Code of Civil Procedure (§ 1532), they had the legal right to maintain an action of partition, subject, only, to the qualification contained in section 1534 of the Code, where the right to partition in the case of infants is made to depend upon the conseút of the surrogate, and the court must be satisfied that the interests of -the infant will be promoted by a judgment awarding partition. This view is supported by authority. (Campbell v. Stokes, 142 N. Y. 23.) The terms of the will in that case did not vest the legal title to the estate in the trustees. The power
While it may be true that the remaindermen may, under certain circumstances, maintain partition, where actual partition may be had without prejudice to the holder of the particular estate or any of the remaindermen, yet it is evident that it is subject to quite different rules from those which obtain as to estates in fee in posses
In the present case the court has denied partition- for the reason that the plaintiff, under the provisions of the will, had no such title as authorized him to maintain such action. Its conclusion in this respect cannot be sustained. The court did not assume to pass upon or determine whether it was for the best interests of the infant that a partition or sale of the premises should be had, or whether demand for division and allotment should have been made of the executors before resorting to an action. The plaintiff was entitled to the judgment of the court upon those questions, and if the plaintiff took the real property as such, the judgment must be reversed and the case remitted to the trial court for disposition of such questions.
We do not think that the terms of this will or the character of the property disposed of makes it necessary to convert the real estate into personalty in order to carry out the intent of the testator. While it is true that there are a large number of separate pieces of real property, some of which were owned solély by the testator in fee and in others of which he owned an Undivided interest with other persons, yet it also appears that the personal estate amounted to $3,000,000 and upwards, and it is quite probable that the executors and trustees could make the allotment provided for in the will in both real and personal property without the necessity of converting the whole of the real estate into money, and certainly, when taken in connection with the ample powers which are given to sell the real estate, it; is far from being impossible to conclude that the ¡allotment of the entire property could be made in specie and fulfill to the letter the terms of the will. Under such circumstances it is readily seen that there is no such blending of the entire estate as to create a common fund. On the contrary, the character of the property can be kept entirely separate and the allotment made as the will provides. In addition to this, by the express provisions of the will, the executors and trustees: are authorized to invest the whole or any part of the estate in real property as well as' in personal securities. If the executors and trustees, in the discharge of their duties, invested the whole of
We have examined with some care all of the authorities which have been cited by the respective counsel in support of the contention that the will worked an equitable conversion of the real estate into personalty. It is not necessary that we discuss each one in detail. Probably the strongest case in support of the claim is that of Delafield v. Barlow (107 N. Y. 535). This was a border case, and while the court held that an equitable conversion was worked by the terms of the will then under consideration, yet they arrived at such conclusion with doubt and hesitation. In that case as here there was the devise of both real and personal property with a direc
Isolated portions, of this will may be laid hold of, and color be lent to the claim that an equitable conversion was intended and worked thereby, but when the whole scheme of the will is examined ■it seems clear that an equitable conversion was neither worked nor ■intended. ■ These views lead us to the conclusion that there was fib conversion of this estate into personalty.
It follows that the judgment should be reversed and a new trial granted, with costs to all parties payable' out of the estate.
Yan Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed, new trial granted, costs to all parties payable out of the estate.