Trask v. Sturges

The original purpose of this action was to compel the defendant Sadie Trask Sturges, one of the executors of the last will and testament of Benjamin I. H. Trask, to unite with the plaintiffs, her co-executors, in selling certain real estate mentioned and described in the third clause of the testator’s will. The defendants appeared and answered, admitting some and denying other allegations of the complaint, and then set up two counterclaims ; one, to procure the removal of the plaintiffs as executors, and the other, - to obtain a judicial construction of the testator’s will.

Upon the trial the relief' demanded by the plaintiffs was denied and their complaint dismissed upon the ground that the defendant Sadie Trask Sturges ought not at that time to be compelled to join in the sale of the real estate described, as it would be against the best interests of the estate. The court likewise decided that the first counterclaim of the defendants should be dismissed, as there was no such misconduct on the part of the plaintiffs as would justify their removal. It

After he declared the instrument executed by him to be his last will and testament, the testator designated three persons whom he denominated “ trustees ” to carry it into effect. He then directed: 1. That they first pay out of his personal estate all expenses pertaining to his last illness and funeral expenses; 2. That they pay his wife, during life, out of the personal estate of which he might die possessed, or which might accrue from interest, rents, profits, sales or any other source, such sums at such' periods as she might need or desire for her own use; 3. That they should as soon after his death as might in their judgment seem fitting, dispose of his Fifth avenue property at public sale, and deposit the cash proceeds with the Manhattan Bank Company to their joint credit to be used as thereafter and theretofore provided ; 4. That they pay his brother seventy-five thousand dollars out of the proceeds of the sale of the Fifth avenue real estate, or any other moneys on hand, such payment to be made as soon as his trustees should determine the condition of the trust fund would permit; 5. That they - pay Antonio Casello one thousand dollars. Then follows the sixth paragraph : “ Sixth. After the death of my beloved wife, Harriet H. Trask, I hereby direct that my said trustees shall in their discretion within a period of five years after her death, sell and convert all my remaining estate, real, personal and mixed, into cash, and shall deposit one-lialf of the net proceeds of the same in a Trust Company, to be by them selected, at the best rate of interest obtainable, to be held as a trust fund by said Trust Company, the principal sum not to be withdrawn by either of the beneficiaries of this trust. The fund is to be the property of my two granddaughters, Sadie Trask Sturges and Adele Sturges, in equal proportions, who may by will devise and bequeath the same, or, failing to make will, it shall go to their heirs-at-law. Said Trust Company shall pay the interest on this trust fund so deposited quarterly in equal proportions to my said granddaughters, Sadie Trask Sturges and Adele Sturges.

The trial court in effect held that the will was valid as a will of real and personal property ; that the provisions contained in the third paragraph directing a sale of the real property therein mentioned worked an equitable conversion of it into personal property from and after the death of the testator ; that such directions constituted a peremptory power of sale which was required to be made at public auction, and that the interests of Sarah S. S. Sturges in that property were subject to the power contained therein. It was also held that the directions contained in the sixth paragraph in respect to the remaining real estate worked an equitable conversion of it into personal property from and after the death of the testator’s widow; that they constituted a peremptory power of sale, and that the interests of said defendant Sarah S. S. Sturges in such real estate were subject in all respects to such power of sale. It was likewise held that two valid express trusts were created by the sixth paragraph, one for the benefit of each of the two grandchildren named, and that said trusts vested in interest immediately upon the death of the widow; that the executors had authority to nominate a trust company to execute such trusts, and that when selected and it has accepted the trust, it would be clothed with all the powers. of a trustee of an active express trust in respect thereto, and that the selection of such, trust company might be made at any time and need not be deferred until the real and personal estate shall be converted into cash. It further held that the defendants Sarah T. Sturges and Adele S. Dodd had no absolute power of disposition in respect to any of the real estate of which the testator died seized, and that none of the defend

The question first presented is whether the provisions for the sale of the Fifth avenue property contained in the third paragraph of the testator’s will survived the death of his widow. It is obvious and seems to be practically admitted that her death effected a material change in the testator’s estate and as to the operation and effect of the will, and that thereupon the property belonging to the estate was to be controlled and disposed of under the provisions of the sixth paragraph, except as to the manner in which the Fifth avenue property should be sold. The appellants, however, contend that after her death the manner in which the property was to be sold, as well- as the disposition of its proceeds, was controlled by the sixth provision and. not by the third. By the sixth paragraph the testator directed his executors, in their discretion, within the period of five years after the death of his widow, to sell and convert all his remaining estate, real, personal and mixed, into cash, and then directed what disposition should be made of the net proceeds. We are of the opinion that the provision in the sixth clause, requiring the sale and conversion of “ all my remaining estate, real, personal and mixed,” was intended to include such of the Fifth avenue property as was unsold, and, upon the death of the widow, that the provisions in the third clause for its sale were superseded by the provisions in the sixth. It is quite obvious that the purpose of the sale provided for by the third -paragraph was to enable the executors to provide a fund from which to supply the necessities or desires of the widow and to pay the legacy given to the testator’s brother. That such was its purpose seems to be practically admitted in the complaint, and that the personal property proved sufficient for both purposes, and that both had been accomplished, is also alleged therein. Therefore, a sale for that purpose became unnecessary, and, consequently, the power was extinguished. (Sweeney v. Warren, 127 N. Y. 426 , 431.) In every case ■where such a power of sale exists there is an implication that

The' appellants also contend: 1. That no valid trust is created by the sixth paragraph, but that the legal title to the testator’s property vested absolutely, one-half in his daughter and one-fourth in each of his two grandchildren. 2. That this title is subject to the power of sale vested in the executors by that paragraph, and that the real property must be regarded as equitably converted into personalty; and, 3. That the beneficiaz’ies being all of full age can waive the exercise of the power of sale and elect to take the property as it now is. There is no dispute as to one-lialf of the residuary, estate disposed of by that paragraph, it being conceded that upon the death of the widow it vested in the testator’s daughter, subject only to the power of sale.

This leads to the inquiry whether a valid trust was created as to the other one-half which was intended for the benefit of the two granddaughters. If the provisions of the will are sufficient to disclose a plain intention to create a trust in their favor, then a trust must be held to have been intended. But that intent must plainly appear, either from the, language employed or by necessary and undoubted implication. That this will was inartificially and unskillfully written, leaving the intent and meaning of the testator obscure and uncertain, is manifest. Still, unless it is so vague and indefinite as to render its purpose and meaning incomprehensible, it is the duty of this court to interpret it in accordance with the intent of the testator so far as it can be ascertained.

By the sixth paragraph the testator first provides for the conversion of all his property into cash. He then directs that one-half of it shall be deposited with a trust company to be selected by his executors, at the best rate of interest obtainable, to be held as a trust fund by the trust company, the principal not to be withdrawn by either of the beneficiaries. Then follows this sentence: “ The fund is to be the property of my two granddaughters, Sadie Trask Sturges and Adele Sturges, in equal proportions, who may by will devise and bequeath the same, or failing to make will, it shall go to their heirs-at-law.” Here the sentence ends, and in the following sentence he declares that the trust company shall pay the-interest on the fund so deposited quarterly, in equal proportions, to his two granddaughters. The provision that the fund was to be their property is entirely inconsistent with the theory

It is contended that the provisions immediately following the words which import an absolute gift, to the effect that the legatees shall have power to devise and bequeath such property and in default thereof it shall go to their heirs, constitute a modification of the previous clause, or at least raise an implication that the gift was not intended to be absolute. We think no such modification or implication was intended or is justified. Those provisions, although perhaps unusual and unnecessary, are not actually inconsistent with the provision that the fund was to be the property of the granddaughters. It merely provides that they may dispose of it by will, or in default of a will that it shall pass to their heirs. Although, if the gift was intended to be absolute, that provision was unnecessary, still, when we consider that the will was prepared by one not learned in the law, may it not with equal propriety be inferred that, under an erroneous conception of the law, he inserted that clause, intending thereby to give them the absolute title so that they might dispose of it by will, or in default thereof it would pass to their next of kin or heirs at law? Under the circumstances, we think it may quite as well be said that such was his intention as that his purpose was to red nee the gift to his granddaughters to a life estate. . The clear and decisive words of absolute gift contained in that sentence are not modified or the gift reduced to a life estate by any such implication. (Banzer v. Banzer, 156 N. Y. 429 .) Obviously, the phrase “ heirs at law ” was not used in its technical sense, but to indicate the persons to whom the

Mor, upon examining the whole will, do we think it can be fairly and reasonably said that it was the intent of the testator that a trust company to be selected by his executors should become a trustee for the portion of his property intended for his granddaughters and that they should have a mere life interest therein. The relation of the trust company as described in the will was to be that of a depositary, and the selection was to be determined only by the rate of interest that could be obtained, which is hardly a basis that a business man would adopt for the selection of a trustee of a large and valuable estate. It seems more consistent with an intent to have the money temporarily deposited during the time required for the sale of the property and its conversion into cash, than with the idea of an intended permanent trust. If that was his purpose, the testator might well have suggested that the fund thus to be accumulated should not be withdrawn by either of the beneficiaries until its accumulation was complete. Such an interpretation is consistent with -the intent that the fund should become the absolute property of the two granddaughters, in possession as well as in interest, and that during the -time of such temporary deposit the trust company should pay the interest upon the fund deposited, at the time and in the proportions mentioned.

Moreover, it is hardly conceivable that it could have been the intent of a business man, “ a large and experienced operator in real estate,” to provide that some unknown trust company should become a trustee of one-half of his large estate, have the possession and use of the trust property, paying only such interest as it should itself determine, with no regard to the amount which it should receive as income therefrom. To impute to the testator such a purpose would, at least, impugn his business qualifications and disclose a sitúa

The appellants-also contend that, if the sixth paragraph of the will be construed to create a trust, it would be invalid as suspending the absolute ownership of the property for a period not limited by two lives in being. (Underwood v. Curtis, 127 N. Y. 523 ; Garvey v. McDevitt, 72 N. Y. 556 .) They also claim that intestacy would result, and the defendant Sarah S. S. Sturges would take the entire residuary estate as next of kin. If this contention be correct, and the claimed trust would be void, and thus the obvious intention of the testator to give.his granddaughters one-half of his estate would be defeated, it would afford another reason why this court should not disregard the plain provision that one-half the residuary estate should be their property and imply a trust from the uncertain language of the other provisions of the testator’s will. If, upon an examination of a will, a

We do not, however, deem it necessary to pass upon the question of the invalidity of such a trust, or to determine the effect of its validity, for independently of that consideration we find in the language of the will no sufficient provision to establish an intention to create a trust, or' which would justify us in holding that such an intent is to be necessarily implied. We think the intent of the testator, as disclosed by his will, was to give absolutely to each of his granddaughters one-fourth of his rfesiduary estate, and that' lie had no intent to give them merely a life estate or to create a trust for their benefit. Although the will of the testator is somewhat uncertain and obscure, yet, as it is manifest that the scheme of his will was to provide for his wife, to give certain legacies mentioned, and then to divide the residue of his property between his daughter and two granddaughters, it is the duty of this court to carry that purpose into effect. It follows that upon the death of the testator’s widow, the legal title to all his remaining property vested, one-lialf in his daughter and the other one-half in his two granddaughters, subject only to the power of sale conferred upon his executors which operated as a conversion of his real estate into personalty.

This leaves for consideration the question whether, inasmuch as the power of sale, so far as it remains unexecuted, is for the benefit of the three residuary legatees who are the

It seems to be well settled that where land is directed to be sold and the proceeds distributed, the parties beneficially interested may, if competent and of full age and the gift is not in trust, elect, before the conversion has actually taken place, to take the land, and where they have so elected and the election - has been made known, the power of sale in the executors becomes extinguished and they cannot thereafter lawfully proceed to execute it. This doctrine is said to be founded upon the presumption that such power was given for the benefit and convenience of the devisees and legatees, and was not intended to be imperative so as to prevent the beneficiaries from taking his bounty, except in the precise form in which the property would exist after the conversion. (Mellen v.Mellen, 139 N. Y. 210 , 220; Hetzel v. Barber, 69 N. Y. 1 ; Prentice v. Janssen, 79 N. Y. 478 .) We think that the defendants having elected to take the land and notified the plaintiffs of their intention, the power of sale in the executors was extinguished and they cannot now execute it.

These considerations lead to the conclusion that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event, payable out of the estate.

Parker, Oh. J., Bartlett, Haight, Vann, Cullen and Werner, JJ., concur.

Judgment reversed, etc.