Rankin v. Metzger

The purpose of this action is to establish the title of the plaintiff to a ninth share in certain real estate, to wit, Ho. 133 East Sixtieth street, in the borough of Manhattan and city of New York. The form of the actipn is one of ejectment. The facts appear to be substantially as follows, viz.: In 1880 Mrs. Mary E. Schuyler died, leaving the real estate in question to her husband and her son, Jacob M. Schuyler, in trust, with power to sell and reinvest. The trust was to terminate upon the coming of age of the two youngest children of the testatrix, which event did not occur until 1892. There were nine children, all of whom are living. All the rents, profits, and income of the trust" estate were to be paid to the husband, who could use them for his own support and that of the nine children, as he should think proper; and upon the termination of the trust the property was to be equally divided among the nine children and the husband, and should the husband die before the coming of age of the youngest child, or the survivor of the two youngest, his share was to go equally to the children. In 1885 the trustees deeded the said real estate to Charles E. Schuyler, who almost immediately afterwards deeded it back again to the trustees. In each case the sale and the repurchase was made by the executors and trustees as such. In 1888 a judgment was recovered against Jacob M. Schuyler personally. A sale thereafter was made under execution, and the plaintiff became in 1896 the owner of “all the right, title, and interest which Jacob M. Schuyler had on May 12, 1888, or at any time thereafter,” in the said real estate. The husband died in 1889, leaving Jacob the sole surviving executor and trustee of the estate, in which he was also one of the beneficiaries. In.1890 the said Jacob, as such sole surviving executor and trustee, conveyed the real estate in question to Gerald L. Schuyler, who sold it to one Govin, from whom defendant purchased it. Both counsel devote a great deal of space in the briefs to the validity of the deed from Jacob to Gerald, so far as the share of Jacob was concerned. Also, much attention is bestowed upon the question when the trust terminated,—whether upon the death of the Husband, or not until 1892, when the youngest child came of age.

The first question here to be decided is whether or not Jacob had a vested interest in the real estate upon May 12, 1888, or any time thereafter, upon which the judgment under which plaintiff claims became a lien. The rule is well settled to be as follows, viz.: Where a power to sell real estate is given to executors or trustees

It is urged that the trust, as to Jacob’s share, ended at the death of the other trustee in 1889, and that the deed to Gerald, in 1890, conveyed the property, subject to the judgment lien as far as Jacob’s one-ninth interest was concerned, and that this lien therefore remained attached to the land, and was not transferred to the proceeds of the sale. It is a general rule, however, that a .surviving trustee is vested with the whole trust property, and so continues until his office becomes vacant by death, removal, or resignation, or by the termination of the trust. See In re Van Schoonhoven, 5 Paige, 559; Leggett v. Hunter, 19 N. Y. 445 ; Perry, Trusts, § 343.

Defendant urges that, although Jacob could not be originally the trustee for his own interest, still he could be, upon the death of the other trustee, the trustee for the other heirs, and that; the trust ranged over the whole estate for the purpose of its management and distribution, citing Woodward v. James, 115 N. Y. 346 , 22 N. E. 150 . It is the defendant’s contention that Jacob could exercise all the powers conferred upon him by the creator of the trust, unless all interest in the trust estate became centered and vested in himself alone, which was not the case here; and defendant cites in support of this contention Woodward v. James, supra, and Hoffman House v. Stokes, 50 App. Div. 163 , 170, 63 N. Y. Supp. 784 . In view of all the facts and circumstances of this case, I incline to the opinion that plaintiff cannot maintain the action. In People v. Donohue, 70 Hun, 318 , 24 N. Y. Supp. 437 , the general term of this department (O’Brien, J.) held that, although the appointment of a beneficiary as trustee would prevent the creation of a valid trust, yet when a valid trust had been created the court would not be justified in holding that, in making an appointment to execute the pre-existing trust, the court was without jurisdiction, or that the order itself appointing ‘‘the life beneficiary trustee” was void. There were three opinions in this case, those of Mr. Justice O’Brien and Mr. Justice Ingraham holding as above, and that of the presiding justice dissenting. In the last opinion, however, the presiding justice seems to place the appointment of a trustee by the court and by the testator upon the same basis, so that, if the beneficiary appointed by the court could carry out the trust, it would appear that the surviving trastee appointed by the testatrix could do the same, notwithstanding the fact that he was also one of the nine beneficiaries. In Losey v. Stanley, 147 N. Y. 560 , 42 N. E. 8 , it was held that an appointment of a beneficiary as trustee, made by the court on the death or resignation of the testamentary trustee, does not extinguish the trust, whether the trust would be void or not in its inception, if the sole beneficiary had been appointed trustee by the instrument creating the trust. It seems to me that, on the same principle, the survivorship as sole trustee of a beneficiary did' not extinguish the trust under consideration. -I am of opinion that the sale by the

Complaint dismissed, with costs.