23 Barb. 209 | N.Y. Sup. Ct. | 1856
A careful examination of this will, and the authorities cited on the argument, has led me to the conclusion
It appears to me that there can be no serious difficulty in ascertaining the intent of the testator in reference to the disposition of his estate; and when that can be gathered, the principle is too familiar to need authority to sustain it, that that intention must govern. At the time the will was made, the testator had a wife and five children, who, he anticipated, would survive him. He first makes provision for the payment to his wife of a sum annually, deemed by him adequate to her support, and he then directs his estate to be divided into.five parts or shares; and he gives, absolutely, one share to each son, and to trustees one share to hold for each daughter. He directs that his estate shall remain undivided until one year after the death of his wife, and until his youngest child should attain the age of twenty-one years. The youngest child having attained that age before the death of his wife, the division was to take place on the 15th of March, 1855, being one year after her death. The testator directed that until such division there should be paid out of the income of his estate the sum of one thousand dollars in each year, to each of his children. On the division, the share of the sons was to vest absolutely in them, and the share of the daughters vested in trustees, during their lives, and the rents, profits and income were to be paid over to them. By the codicil, the part and share of the estate of the testator given to David, was given to his brother Alfred, the plaintiff. I think, that under this section of the codicil, the plaintiff is entitled to all that part of the estate given by the will to David, and which the latter would have taken if he had lived. I do not see why his right to this annual advance of $1000 until the division of the estate, (and which David would certainly have been entitled to if he had lived,) is not just as fixed and certain as is his right to the. residue of the share of David. The annual payment is but an advance or anticipation of a portion of the share, it is in fact a part of the share, and a devise of the share necessarily carries with it a disposition of all parts of the share and of its product. It is contended, that
There can be no question that it was the intjmtigl^nf the testator, that his estate should remain in mass until the exph%n tion of one year from the death of his wife, apt, youngest child came of age. The executors were |to rent real estate and invest the personal, and from the re^/ts make the payments directed by the will until the division sn§ place. The testator contemplated, what might naturally take place, that there would be a surplus. His children were to receive only until the division, the annual sum directed by the will.
What was to be done with this surplus, if any, until the division ? I think this question is answered ■ by the directions of the will. The real and personal estate were to be rented and invested until the division, for the benefit of the estate ; and this provision, taken in immediate connection with the provision that no division of the estate should take place until the happening of the event upon which it depended, and the pro
If the intervening rents and income, from the death of the testator up to the time of the division, are in truth undisposed of, they fall into the residue of the real and personal estates respectively. (Duke of Bridgewater v. Egerton, 2 Ves. 121. 4 Kent's Com. 284. Bryan v. Knickerbacker, 1 Barb. Ch. R. 409.) I think these cases show that if the directions to investor accumulate the rents and income of the estate, for the benefit of the estate, are not sufficiently explicit, then the executors were bound, as well in accordance with the will of the testator, as in accordance with well settled legal principles, to retain and invest the annual surplus for the estate, and the same must now be divided as part of the real and personal estate.
The learned counsel for the administrator of Mrs. Craig earnestly contended that the trusts created in reference to the shares of the daughters, were passive and not active trusts ; that the title of each daughter in the respective share given to her, vested absolutely her share in her ; that the rule in Shelley’s case was applicable, and that the first taker took the fee. As authority for this, the counsel cited 1 Coke, 104; 4 Kent, 214; Schoonmaker v. heely, 3 Hill, 165; Lalor on Real Estate, 97, 75 ; 2 R. S. 11, § 28. These cases illustrate the application of the rule in Shelley’s case, and, if the trust created by this will'be a passive one, would be controlling. Chancellor Kent says the rule in Shelley’s case is equally applicable to conveyances of the legal estate, whether by will or by deed, though there is more latitude of construction allowed in the case of wills, in furtherance of the testator’s intention. (4 Kent's Com. 7th ed. 226.) To maintain the proposition that the trusts created by this will are passive, and not active, the same coun
It was contended on the argument that this was a passive trust, because, by the terms of the will, the cestuis que trust were themselves “ to receive and take to their own use and benefit,” during their lives, the rents, issues, and profits of the one-
A considerable .portion of the real estate of the testator has been taken by public authority for public use, and it is alleged that this has worked a conversion, turning the real into personal estate, and that the same must be disposed of according to the statute of distributions. If such a conversion had taken place, I do not see how it is to aid the administrator of Mrs. Craig. If it be personal estate of the testator, it is equally to be held in trust; and she was only to be entitled to the income of one-fifth during her life. The case of Graham v. Dickinson, (3 Barb. Ch. 169,) is relied on to sustain the position, that the proceeds of the lands taken are to be regarded as personal estate, and, on the death of the wife, go to her representatives, and not to her heirs at law. The chancellor certainly does hold, in that case, that the real estate had been converted into personal, and that, on the death of the wife, her share reverts to her administrator. The case of Sweezy v. Thayer, (1 Duer, 286,) is relied upon as qualifying the decision in Graham v. Dickinson. I understand the latter case as holding that when the conversion takes place during coverture or infancy, the sur
The only remaining question to be disposed of is that of the claim of the plaintiff to commissions upon the real estate, of which he has had the care and management for near thirty years. In his hands and under his watchful superintendence, and by his skill and good judgment, it has been preserved and protected, until it has become an estate of great magnitude, and giving to each heir a large fortune. The claim of the executor commends itself as just and reasonable, and if it is sustained by principle and authority, ought to be allowed. The English court of chancery did not and does not allow compensation to trustees, executors, &c., unless the same is given expressly or by implication, by the deed or will creating the trust. (Lewin on Trusts, 438.) The same rule obtained in this state until the passage, in 1817, of the act giving commissions to executors and administrators. (L. of 1817, p. 292.) This act authorized the chancellor, bn the settlement of the accounts of guardians, executors and administrators, to make a reasonable allowance to them for their services as such, over and above their expenses, and such rate when settled by him was to be conformed to in all cases. In compliance with this statute, the chancellor, on the 16th of October, 1817, made an order that the compensation to guardians, executors and administrators, should be, for receiving and paying out money, on all sums not exceeding $1000, five per cent; two and a half per cent on all sums exceeding $1000 and not exceeding $5000; and on all sums above $5000, one per cent. (3 John. Ch. 630.) The English rule was discussed and adhered to by Chancellor Kent, in Green v. Winter, (1 John. Ch. 37.) The
The question as to compensation to trustees generally, does not appear to have been judicially passed upon in this state until 1832, when Chancellor Walworth, in Van Rensselaer v. Bayard, and Denniston v. Bleecker, (not reported, but referred to by him in Meacham v. Sternes, 9 Paige, 398,) was of the opinion that compensation, similar to that allowed to executors, &c. should in all cases be allowed to trustees. In the latter case, he held that such compensation was proper to be paid to trustees for their services, and such has ever since been regarded as the well settled law of this state. In other states, it is now held that trustees are entitled to such compensation, as within the equity of their statutes giving compensation to executors, or because they do not regard the English rule withholding compensation as just and equitable. (Granberry v. Granberry, 1 Wash. 250. Miller v. Beverley, 4 Hen. & Munf.
It seems to have been supposed by the referee that the trustee in this case is limited to his commissions on that part of the estate which has become personal property, and this, doubtless, has arisen from assuming such to be the intent of the statute, in the case of executors and administrators. The statute alludes to personal estate, simply because that is all executors and administrators have in charge. In reference to them, the statute allows commissions “ on all sums of money” that they may receive and pay out. (2 R. S. 93.) But commissions on the whole amount of the trust estate in their hands, under their
I believe that I have now disposed of all the questions raised on the argument of this cause, and have arrived at such conclusions as much reflection and such examination as other claims to my time have permitted.
A decree will be prepared on the principles here settled and for a partition according to the terms of the will; the shares of the surviving daughters to be assigned to trustees to hold upon the trusts of the will; the shares of the plaintiff to be transferred to him, and that belonging to the children of Mrs. Craig to be transferred to such as are adults, and the shares of the infants to be deposited with the United States Trust Company,
The costs of all the parties to this suit, with a reasonable allowance, will be paid out of the funds of the estate.
Davies, Justice.)