Henderson v. Henderson

The questions, which this appeal brings before us for review, relate to the validity of the disposition which was made by this testator of his residuary estate. The sixth clause of his will provides as follows: “ All the rest, residue and remainder of my estate,- both real and personal, and wheresoever situated, I hereby authorize, empower and direct my executor to partition, divide and apportion equally among

By the ninth clause the testator directs his executor, until the partition of the estate, to pay over to each of the children $2,400 per annum, quarterly, from his decease, and to charge the payment to the child as a part of his or her share of the estate. In the tenth clause, he authorizes his executor to take entire charge, control and management of all the real and personal estate; to lease; to collect the rents, issues and profits and income; to make investments; to insure; to pay taxes and assessments; to make repairs; to pull down buildings and erect new ones, etc.

We do not think that any valid express trust was created by the testator; for, if such was his intention, it would be ineffectual for not being comprehended within the provisions of section 55 of the article on uses and trusts in the Revised Statutes. The main purpose of testator’s will was that his children should participate equally in his residuary estate, and that its division among them should be effected by bis executor. For the

In its features this case resembles Cooke v. Platt ( 98 N. Y. 36 ), where there was an express devise to the executors, which was held ineffectual as constituting a valid trust, because it was not upon one of the express trusts 'authorized by statute. The declared purpose in that case was to divide the estate among the children through the executor, and a discretionary power to sell was conferred. It was there held that the trust could not be sustained as one to "receive the rents and profits of the land, under the third subdivision of section 55, because there was no direction to apply them to the use of any person for any period. And it was said that “ the statute does not authorize the creation of a trust for the partition of lands. But a power may be created for that purpose, and a devise to the executors, though void as a trust, may be valid as a power to distribute and divide.” It was held in the same case that it was essential to the constitution of a valid trust, if the purpose be to sell lands for the benefit of creditors and legatees, that the power of sale should be absolute and imperative, without discretion, except as to the time and manner of performing the duty imposed. “ The sale or other disposition mentioned in the statute must be the direct and express purpose of the trust.”

However convenient to the executor the possession of' the legal title to the estate might be, in order to carry out the testator’s purpose, a trust estate should not be implied, when to do so would make the will conflict with the statute and when the duties imposed upon the executor could be executed under a trust power. (Post v. Hover, 33 N. Y. 601 ; Heermans

There is nothing in the will, which makes it absolutely necessary to imply a trust; because everything, which the executor is called upon to do, maybe performed, either in that capacity, or as the donee of a power in trust. He is not required to distribute from the income, but to advance from the capital to the children, and his duties of management of the estate, of realizing upon-the same by sale for the purpose of partitioning and apportioning, may be lawfully performed by him under a power in trust. The power of sale was in no wise suspended by the provision in the sixth clause directing that the executor should not be compelled to make partition, division and apportionment until after the lapse of five years from the date of probate of the will. The reason furnished by the will for this direction is that, owing to the condition of his estate and the possible necessity of having to convert into money the realty and personalty composing it, the executor might not be able to do it speedily without entailing sacrifice and loss. The decision of this court in Robert v. Corning ( 89 N. Y. 225 ) is in point. Under the will in that case the executors were directed to sell the residuary estate and from the proceeds were to distribute it in certain parts among the children; but they were empowered to delay a sale for not exceeding three years. It is there said in the opinion that “ the mere fact that it might be the duty of the executors, in the exercise of their discretion, to postpone the sale to await a more favorable market does not, we think, constitute such a restraint as suspends the power of alienation within the statute.” There was no unlawful perpetuity created hy authorizing the executor to delay partitioning the estate, because the power of sale was not suspended. He could sell and convey an absolute fee m possession at anytime after testator’s death. He was a person in being, who could at any time- sell the real estate, or give title by partition among, the testator’s children, without con

At testator’s death all of his children survived him and were of full age, and, if necessary, they' could have united with the executor in a conveyance of the real estate; and, if an immediate conveyance and payment were to he made, they could take at once from the executor. The powers of partition and of sale being valid, however, the children of testator took their interests at his death subject to their exercise, and, hence, one or more of them could not maintain any compulsory partition proceedings, pending the existence of the right in the executor to exercise his powers. Although there is no present express devise to the children of the residuary estate, but only the direction to the executor to divide and apportion it among them, if they were alive at the time of distribution, we think their interests must be considered as having vested at the testator’s death. Such would be the result from the fact that no valid trust estate has been created in the executors, and such would be fairly inferable as an intention of the testator from his language in the sixth clause, where he says: “I do hereby give, etc., to each of my said children the share or portion of my estate so to be partitioned, etc., as aforesaid.” The time of conveyance of the realty to and of the distribution of the personalty among the childrends postponed, only, but that is not inconsistent with the vesting of the undivided shares. We regard that language as disposing of the suggestion that time was of the substance of the gift.

Nor is any insuperable difficulty created, in this case, in the existence of any ulterior, contingent limitation in the sixth clause. The language referred to is, “and provided, further, that if any of my said children shall die leaving issue, then the child or children (who shall be living at the time of such partition) of such deceased child of mine shall take and have the share or portion which the parent would have taken, if living.” The primary intention of testator was to give to his immediate children the absolute title' to their shares;

We do not think that the main testamentary purpose of the testator should be allowed to be frustrated because of its existence. The will, in that respect, was carelessly or inartistically drawn. The testator had previously directed the partitian and apportionment of his estate among all his children “living at the time of making such partition and division, and the child or children of such of my children as may then

In Harrison v. Harrison ( 36 N. Y. 543 ), it was said that “the principle is now well settled that the courts lean in favor of the preservation of all such valid parts of .a will as can be separated from those that are invalid, without defeating the general intent of the testator ” (citing many authorities.) In Tiers v. Tiers ( 98 N. Y. 568 ), it was said: “ It is quite evident that the ulterior, contingent limitation is quite separable from the primary trust, and merely incidental; its only purpose being to provide for a contingency which may never arise, and the failure of that provision would not affect the general scheme of testatrix. In such cases the rule is quite well settled .that an ulterior limitation, though invalid,

Courts should endeavor, by every reasonable intendment and by a liberal construction, to sustain a testamentary disposition of property when, in so doing, they can give actual and just effect to the testator’s purpose and validate at least the main, if not the true part of a testamentary scheme, which contemplates distinct and severable acts. If the principal disposition can be upheld, we should disregard ulterior, contingent limitations, which threaten violation of statutory rules respecting the ownership of property. Thus, in this will, it is perfectly clear that what the testator desired to accomplish was an equal partition of his estate, within a certain period of time, through the exercise of his executor’s judgment, among his children then living, and the issue of any child dying before the actual division and apportionment, per stvrpes and not per capita. So much he has said in the opening paragraph of the sixth or residuary clause; and, if it is argued that the subsequent limitation imposed upon the gift, by which, upon the decease of one of his children, the parent’s share shall not vest in his or her issue at once, but shall be held and paid over only to those living at the time of partition, is to be taken as a serious purpose of the testator, and constitutes a void ulterior, contingent limitation, it may be severed from the will without affecting the main purpose of the testator. Thus cut off, the attainment of his principal objects would he secured, and the absolute ownership of the personalty and the ultimate vesting in interest of the remainder created in the realty, could not be postponed beyond the life of the parent, testator’s child.

For the reasons we have given, the order of the General Term should be reversed, and the judgment of the Special Term should be affirmed, with costs to all parties who .have appeared in the action, to be paid out of the- estate.

The motion should be denied.

All concur.

Order reversed and judgment affirmed.

Motion denied.