33 N.J. Eq. 393 | New York Court of Chancery | 1881
This suit is brought by Conrad Weiland in his own behalf, and as guardian of his two minor children, the offspring of his deceased wife, Annie, daughter of George Wylie, deceased, late of Paterson, against Nathaniel Townsend, administrator cum testamento annexo, and trustee under the will of George Wylie
“I order and direct, further, that the whole,of the balance of my estate, of whatsoever nature and wheresoever situate, be and it is hereby placed in trust in the hands of my executor and trustee below named, who shall be and is empowered and directed to carry out and complete certain business engagements in which I am now interested, to form new engagements of like nature, to buy and sell property as, in his discretion and judgment, I myself might do.
“ I further order and direct that the members of my immediate family shall be provided for by my said trustee out of my estate, each member thereof to receive an equal allowance, the amount of which shall be subject to the discretion of my said trustee; but each sum shall be at least sufficient in such case to keep the recipient thereof from actual want.
“ I further order and direct that the trust which I hereby create shall cease and determine at the end of twenty-one years, when the balance of my estate remaining after the performance of the above conditions, shall be divided among my then legal representatives and assigns, in such proportions as to my said trustee may seem just and proper; and I do hereby em*395 power him to make such division according to his best discretion and judgment ; and, in making snch disposition of my estate, I am governed by conclusions which are the result of long and careful reflection.
“ And I do hereby appoint as such trustee, and also as executor of this will, Francis A. Canfield, in full confidence that its provisions will be faithfully executed.”
The will was proved in Passaic county, and letters testamentary thereon issued to Francis A. Canfield, on or about the 15th of June, 1867. He died in 1876, and the defendant Nathaniel Townsend was appointed by the orphans court of that county, in that year, administrator cum testamento annexo, and trustee in his place. He was required to give bonds in the sum of $62,000, which he gave accordingly. The debts have all been paid, and all the duties to be discharged by Townsend in regard to the estate are those of a trustee.
The complainant insists that the will gave Canfield only a mere power, and that the power, being a discretionary one, expired with him • and that the residue of the estate is therefore immediately divisible among the next of kin of the testator. But it is clear that Canfield was clothed with more than a mere power. He was clothed with a trust. The testator declares that he places the residue of his estate in trust in the hands of his executor and trustee, and he subsequently speaks of the provision as the trust which, by the will, he has created. ■ He authorizes the trustee to
The testator clearly intended that the trust which he created by his will should last for twenty-one years. He makes no other provision for his widow than that contained in the trust— the allowance to be made by the trustee for her support, and the
“ I farther order and direct that the trust which I hereby create shall cease and determine at the end of twenty-one years, when the balance of any estate remaining after the performance of the above conditions shall be divided among my then legal representatives and assigns.”
His intention was that the estate should be held and managed by the trustee for the period which he designates as the duration of the trust; his immediate family to be supported out of it in the meantime, and that it should then be justly and equitably divided among those who would at that time, by law, be entitled to it, either as his heirs or next of kin, according as the property should be real or personal; and he confided the division to the trustee because the latter, from his administration of the estate in the meantime, making the allowances, &c., would be able to make the distribution according to justice. The distribution, now that the trustee whom he appointed is dead, must be made by this court. In the meantime, and until the time for distribution arrives, the estate will be managed under the direction of