Traphagen v. Levy

| New York Court of Chancery | May 15, 1889

The Chancellor.

Where the duty of a trustee is involved in doubt, it is his right to ask and receive the aid and direction of a court of equity to the extent that his necessities may require. The questions propounded may involve not only the duty of the trustee within the acknowledged limits of'the trust and with reference to the trust estate, but also determination as to the title of the trustees and others to property. In the latter case, all persons interested in the several questions should be before the court in order that they may be bound by the court’s decree. In their absence, the decree will serve only for the guidance and protection of the trustee in his relations to his trust. It is manifest that, when such persons are not before the court, the court should stay the case until they are brought in, or limit its determination of questions presented to the present need of the trustee.

The questions presented in this case relate entirely to title. The complainant’s present need is to know whether he has any right and title in the real estate that the testator left, and, if he has, what its nature and extent is.

It is quite apparent that the testator’s scheme was to take the entire control and management of his real estate from his widow and children, but, at the same time, to make provision by which they should enjoy the profits from it. To accomplish this purpose he gave the “care and custody” of it to his executors, and directed them “to pay all the legacies as herein directed.” It appears to be plain that within the word “ legacies ” the testator meant to include his gifts of income. He-gave only a single legacy of personalty, his household furniture, yet he spoke of legacies, using the plural. He disposed of the income of realty by the-word “give,” and subsequently spoke of it as having been “ bequeathed,” thus indicating a disregard of the strictly technical signification of words. The will contains no direction for the-payment or delivery of the single legacy. The only gifts that it gives specific direction for the payment of, are the several portions of the net income. A cardinal ‘rule in the construction of wills is, that effect must, if possible, be given to all its expressions. The expression “as herein directed,” unless it gives a meaning to the word “ legacies ” as used in the will, must be-meaningless. It can refer to nothing but the income.

It seems to me to be plain that the intention of the testator was, to make his executors trustees of his lands, to collect the rents and profits, and, after discharging therefrom the expense of maintaining the property, to pay whatever remains of it, at stated periods, to his wife and children in designated proportions. The executors take the legal estate in the land for this purpose.

Here the questions arise, how long the trust thus created is to continue, and whether, during its continuance, the trustee is to retain title to the entire estate.

It is well settled that a devise of the income' or of the rents and profits of lands, without limitation as to time, either in the devise or by other disposition of the rents and profits or of the land itself, is tantamount to a devise of the land itself in fee. Den v. Manners, Spen. 142; Den, Sharp, v. Humphreys, 1 Harr. 25; Diament v. Lore, 2 Vr. 220; Bird v. Davis, 1 McCart. 467, 476; Kay v. Kay, 3 Gr. Ch. 495, 497; Manning v. Craig, 3 Gr. Ch. 436; Hance v. West, 3 Vr. 233; Reed v. Reed, 9 Mass. 372" court="Mass." date_filed="1812-10-15" href="https://app.midpage.ai/document/reed-v-reed-6403936?utm_source=webapp" opinion_id="6403936">9 Mass. 372; 4 Kent. Com. 536.

Here the devise to the widow is of income. It is to go to her for an indeterminate period of time if she shall not again marry. Ho other disposition is made of it, or of the undivided third of the principal of the estate which it represents. Her interest, then, is an equitable fee in one-third of the testator’s estate, subject to be defeated by her remarriage. As she died without having been remarried, that equitable fee descended to her heirs .at law. The trust for the wife terminated at her death, and her heirs may now demand a conveyance of the legal estate. Gray Perp. § 236.

How, as to the remaining two-thirds of the estate: The testator’s five children are yet alive. As to them the trust is expressly for their respective lives and is a clearly valid one, at least for that length of time. Gray Perp. § 422. When they respectively die, the income is to go indeterminately to others, no ultimate disposition being made of it, or of the portions of the estate that it represents. It would seem that this, as in the case of the widow, would carry the equitable fee with a right to a conveyance of the legal estate, but I do not now so decide.

It is unnecessary for the instruction of the complainant in his present duties that I shall define rights in which he need not now be concerned. Before there may be occasion for further direction other persons may come into being who should be heard upon the questions to be determined, and whose rights cannot be ■concluded by a decree in the present suit, or death may remove all doubt as to the disposition of the estate.