5 Paige Ch. 596 | New York Court of Chancery | 1836
Although the father of these complainants has made a most singular, and probably a very in- ■ discreet disposition of his property, considering the situation of his family and the tender ages of his children at the time of his death, I cannot perceive that the defendant, J. B. Wood, has done any thing, or has attempted, or even claimed the right to do any thing which he had not reason to believe it was his duty to do, as the executor of his brother and the testamentary guardian of the complainants, and as a faith
Although the testator directs all his estate to be sold, and one third of the proceeds to be invested for the rase of his xvife during her widowhood, it does not appear, by any necessary implication from the xvill itself, that he intended this provision to be in lieu of dower in the real estate of xvhich he died seized. The xvidow is not therefore obliged to elect betxveen that provision and her dower. The question has frequently been discussed in the English court of chancery, how far and when a legacy or annuity to the wife, charged upon the real estate of the testator, is to be considered as a provision in lieu of doxver, and there have been many conflicting decisions on the subject. (See Arnold v. Kempstead, 2 Eden’s Rep. 237, note; and French v. Davies, 2 Ves.jun. 572.) Z am satisfied, however, from an examination of the American, as xvell as the English cases, that a devise of all the testator’s real and personal estate to trustees, to be converted into money, without any particular designation of the real property to be sold, and giving to the widow an annuity or other-provision out of such mixed fund, is not, of itself, sufficient to show that the testator intended that her interest in the land, as tenant in dower, should be sold as a part of the estate; so as to make it necessary ¿for the widow to elect between such dower and the provision contained in the will. The widow in the present case is therefore entitled to both.
Neither is it necessary that the widow should go to the state of Ohio with, her children, to entitle her to the six per cent, per annum on the amount of one-third of the property. The annuity is made payable at the house of the trustee in the state of Ohio; and if he resides in that state and has a dwelling house there, and has actually invested the third of the property, out of which her annuity is payable, in that state, as directed by the will, she must go there to receive the semiannual payments, or must employ an agent or attorney to receive the payments at the place designated by the testator. This investment was not intended by the testator to be made In the purchase of real estate; but, on the contrary, he intend
I have arrived at the conclusion, however, that the limitation over to the heirs of the blood of the testator is void, as being too remote. The absolute power of alienation cannot be suspended beyond two lives in being at the death of the testator. And this case does not come within the exception contained in the sixteenth section of the article of the revised statutes relative to the creation and division of estates; (1 R. S. 723 ;) for the limitation over does not depend upon the death of all the children without issue under the age of twenty-one, as they may, by the terms of the will, be kept out of the enjoyment of the property until they are twenty-two, if the trustee thinks proper. And upon the death of two of the children without issue, the third would take the ultimate remainder in fee, ag the only heir of the blood of the testator, under the
It may, perhaps, be supposed that the provisions of the revised statutes do not apply to this case, as the.lands directed to be purchased are in another state, where the common law rules prevail; by which rules a contingent limitation over, at the termination of any number of lives in being at the creation of the estate, is valid. But the laws- of this state, which was the testator’s domicil, must govern the disposition of his personal estate, and the proceeds of his real property situate here; and no valid disposition could be made of any of his property by will, which disposition would be illegal by the laws of this state. The direction, therefore, to invest the proceeds of the testator’s property in the purchase of Ohio lands, upon trusts which are illegal here, cannot be sustained.
The contingent right of the trustee to receive the rents and profits of the share of each of the complainants, after the age of twenty-two, even if it were valid in other respects, is not such a trust as is authorized by the revised statutes; as by the express direction of the testator the conveyances for the lands purchased are to be taken in the names of the children, and not of the trustee. And the authority to receive the rents and profits and apply them to the use of the children for life, or for a shorter period, in the discretion of the trustee, after they arrive at the age of twenty-two, is not valid as a power in trust merely; as it is necessary that the trustee should have the legal estate to enable him to collect the rents and profits in his own name, either' by distress or otherwise. It is because a seisin of the legal estate is necessary to enable the trustee to collect the rents and profits, that a devise of the legal estate in the rents and profits to a trustee for a term of years, or for any other limited period, carries with it the legal estate in the land for the same term or time, by necessary implication, at the common law. (See Stile v. Tomson, 2 Dyer’s Rep. 210, a. Courthope v. Heyman, Carter’s Rep. 25.) The same objection
There being no legal trust vested in the testamentary guardian, in the character of trustee, which can be sustained under the provisions of the revised statutes, this court may lawfully control the exercise of the legal power of the guardian over the property, by giving such directions in relation to the investment of the infants’ shares thereof as may be most beneficial to them, under the existing circumstances, which were not contemplated by the testator at the time of making his will. I will therefore proceed to consider the question, whether it. is expedient for the court to give such directions to the testamentary guardian in the present case.
it is very evident, from the will, that t.he decedent, for some reason which he has not explained, was very desirous that his widow and children should leave this state, where his as well as her relatives resided, and should remove with his brother, the trustee, to the state of Ohio; where, it is admitted, none of them had any relatives, or even acquaintances. The trusts
I have no doubt as to the right of a parent or guardian to change the residence of his infant children, or wards, from one state to another, provided such change of residence is made in good faith and with a view to their benefit; subject, however, to the power of this court to restrain an improper removal of an infant by his guardian, or even by his parent. It must be a very extreme or special case, however, which would induce this court to interfere with the natural rights of a parent in this respect. That such a power exists in the court of chancery, was settled by Lord Thurlow, in the case of Creuze v. Hunter, (2 Cox’s Ca. 242.) The jurisdiction of the court on this subject was again exercised, by Lord Eldon, in De Manneville v. De Manneville, (10 Ves. 52;) where the father of the infant, a French emigrant, was restrained from removing the child out of the jurisdiction of the court. And in the recent case of the nephew of the duke of Wellington, a son of Lord Maryborough, the house of lords, with the entire concurrence of Lord Chancellor Lyndhurst, and of Lords Redesdale and Manners, two former chancellors of Ireland, affirmed the decision of Lord Eldon, in refusing to a profligate father the custody and control of the persons of his infant children. (See Wellesley v. Wellesley, 2 Bligh’s Parl. Rep., N. S., 124. 1 Dow & Clark, 152, S. C.) This court has the same jurisdiction over a testamentary guardian as it has over a guardian in socage, or any other guardian; and in this case it would be improper to permit the testamentary guardian to take the infant complainants from their mother and carry them among strangers, several hundred miles from her residence, at their present tender ages. He must not take them from her, therefore, without the further order of the court; which order he is at liberty to apply for whenever it may be proper. As the third of the estate was given to him,
As the trusts of this will are many of them illegal, and none of them can be carried into effect in the manner contemplated by the testator, and as the testamentary guardian and executor appears to be willing to do what is proper, and consistent with his duty as a faithful trustee, I would recommend to the mother and the next friend of the infants, to endeavor to make some amicable arrangement with him for the investment of the two-thirds of the property, in this state; and for the custody and support of the infants until the boys are old enough to be put to farming. Any such arrangement which may be thus made between them and the executor and guardian, and which is consistent with the rights and interests of the infants, and the safety of their persons and property, will receive the sanction of the court. In the mean time I shall suspend the entering of any decree or order, for the present, to enable the parties to perfect such an amicable arrangement if possible,