Ulrich v. Ulrich — 18 N.Y.S. 570

Majority

p. 570

Ulrich v. Ulrich.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

Trusts—Powers op Trustee—Rights op Benepiciart—Payment op Rent.

A trustee who leases a portion of the trust property to one of the cestuis que trustent has no authority to agree that the rent shall he paid by having the same-charged against the tenant’s share of the trust estate.

Appeal from circuit court, 27evv York county.

p. 571

Action by Edward Ulrich, executor of, and trustee under the will of, Barbara Ulrich, deceased, against Charles Ulrich. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before Van Brunt, P. J., and O’Brien, J.

Nelson Smith, for appellant. . Edward P. Orrell, (Edward W. S. Johnston, of counsel,) for respondent.

The pleadings in this case show an agreement between the plaintiff and the defendant for the renting of the premises in question at an agreed price. The defendant claims that the plaintiff agreed that the rent should be paid by having the same charged against his share in the estate, of which the plaintiff was trustee. This defense the court refused to allow the defendant to prove, and in this we think there was no error. The trustee had no power to make an agreement with the defendant that the rent should be paid in the form in which it was claimed- by the defendant it was agreed to be paid. The result of legalizing such an agreement would be allowing a trustee to accept payment by charging the debt against a supposititious share or interest in an estate by an heir or devisee. No trustee can deal with a trust fund in that manner, and, so far as the contract provided for payment in that form, it was null and void; it being beyond the power of the trustee to make any such agreement. The judgment should be affirmed, with costs.