Russell v. Hilton

The will now before us is inartificially drawn, and in some of its provisions is obscure and vague, notwithstanding which we think that the testator’s intention as to the disposition of his property may be fully ascertained and made effectual. The construction given by the learned justice at the Special Term to the various provisions which were drawn into controversy is, in the main and as to the more important subjects involved, in accordance with the News we entertain, after a careful consideration of the arguments made at the bar by the several counsel who discussed the case before us. It will suffice for the proper decision of the appeals that we state separately, but briefly, the conclusions at which we have arrived concerning the subjects of disputed construction as they were presented to and passed upon by the court below.

I. It is quite clear that the will is to be regarded in its entirety as one. of personal property. The testator expressly declared that all of his estate and property, of every kind and description, and wheresoever situate, was given to his executors in trust “to take the custody and possession thereof and sell and dispose of the same at such times and in such manner as they shall deem fit or proper, and convert the same into money and pay over and distribute the same as follows”: (When making specific disposition.) It will be seen from the whole will that there is no gift of anything, except of the proceeds of sale of all the

2. The trust in the executors to sell and convert the real estate into money, and pay over and distribute the proceeds, is a valid express trust to sell land for the benefit of legatees under subdivision 2 of section 55 of the statute of uses and trusts. The executors are not clothed with a mere power in trust, the land itself passing to the heirs; they are expressly authorized, until a sale is made, “to lease or let the same or any part thereof for such terms as they shall see fit.” Thus they are empowered by implication to take the rents and profits until a sale is made. As is said in Morse v. Morse, 85 N. Y. 58 -59, “a trust to sell, mortgage, or lease lands for the benefit of legatees, or to receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter period, are among the express trusts authorized by the statute.” 1 Rev. St. 728, § 55. It is clear that the power of sale in the will in question was conferred for the purpose of conversion, and with a view to the distribution of the proceeds of the sale of the land among the testator’s children. This is not expressly declared, but the prior gift of the whole residuary estate to them, followed by the power of sale to the executors, permits of no other inference. Fisher v. Banta, 66 N. Y. 468 ; Marsh v. Wheeler, 2 Edw. Ch. 156 ; Kinnier v. Rogers, 42 N. Y. 531 . “The direction to sell was imperative, and operated in equity'as a conversion of the land into money. It was the intention of the testator that the beneficiaries should receive their respective interests in money, and not in land.” We concur with the court below that, “since the will worked an immediate equitable conversion of all of the testator’s real estate into personalty, the trusts set up by the will are to be considered as trusts of personal property, which are not fettered by the limitations prescribed for trusts of real estate, but may be created for any purpose not unlawful, subject only .to the law against perpetuities. Cochran v. Schell, 140 N. Y. 516 , 534, 35 N. E. 971 .” There is no invalid suspension of the power of alienation of real estate, or of the absolute ownership of personal property. Neither is suspended for more than two lives in being. All the specific legacies are payable to the legatees personally, except as otherwise provided. The testator’s daughter Mrs. Russell is to receive all she gets, absolutely.

3. We agree with the conclusion of the court below that the specific legacies given in the first to the ninth clauses of the will, inclusive, drew interest only from one year after the grant of letters testamentary, but we do not concur in the conclusion reached that each of the specific sums of $50,000 mentioned in clauses 1, 3, and 4 of the will is to be deemed a part of the share and interest of the defendants Cornelia H. Hughes, Edward B. Hilton, and Albert B. Hilton, respectively, and is “subject to the limitations placed upon each such share and interest.” On the contrary, we are of the opinion that each of the specific legacies given by the testator in the clauses first to ninth, inclusive, are absolute gifts of money, payable directly to the ■persons named, and are to be entirely separated from the gifts of the residuary estate mentioned in the subsequent part of the will. The gifts to the testator’s children of the specific sums of $50,000, associated with other gifts of money to the testator’s grandchildren, brother, and sisters, are to be taken out of his general estate. The scheme of the will was evidently to divide the estate into two portions, the one to be kept separate from the other, and the amount of the second portion of the estate not to be ascertained or determined until after the first portion had been deducted. The testator gave the specific legacies mentioned, and then, having excluded the amounts of those legacies, he directed that all tbe rest, residue, and remainder of his property be divided into twelve equal parts, which should be paid over and distributed to his children, as follows: To Mrs. Hughes, two equal parts; to

4. We adopt the construction given by the justice at Special Term to the provision of the will of the testator relating to the share in

5. It is unnecessary to consider the provision of the will respecting the share- in the residuary estate given to the testator’s son Ed

6. The question arising under the ninth clause of the will of the testator, relating to the fund of $25,000 appointed by the executors for the benefit of Agnes S. Hilton, was properly disposed of by the court below. According to the provisions of the ninth clause, the executors were authorized in their discretion to set apart out of the testator’s estate the sum of $25,000, and from that fund they were authorized, from time to time, as they saw fit, to pay to or for the use of the testator’s son Henry G. Hilton, and of his son’s wife, Agnes S. Hilton, or to or for the use of either of them, such sums or amounts as the executors should see fit, or as they should consider proper or expedient. The executors notified Agnes S. Hilton that they had elected to appoint her the sole beneficiary of this fund. Agnes S. Hilton died in March, 1900. During her life there had been paid to her a certain portion of that sum, and there remains a balance of $20,329, which her administrator claims as being part of her personal estate. We agree with the court below that Mrs. Agnes S. Hilton did not, by the exercise of the power of appointment, become vested with an interest in the whole fund, and that upon her death the balance of that fund became part of the residuary estate of Henry Hilton. It was a fund held by the executors as trustees, and Mrs. Hilton was entitled only to such portions theréof as the executors in their discretion set aside or allotted for her personal benefit. There was no gift of the fund either to Henry G.

7. The court below was not authorized in this action to hold that the executors were empowered to employ and pay one of themselves as an agent of the estate. That subject does not arise in an action for the construction of the will, because it relates simply to the propriety of the employment of a particular person, and not legitimately upon a construction of the will. It does not present the subject of the power of the executors to employ assistants or agents. That pow'er is expressly conferred by the will, but the approval of the court has been given, in an action for construction, to the employment of a particular person, and the payment to him of a salary out of the income of the estate. If the question arose simply as to the right of the executors to employ one of their number as an agent of the estate, the answer would be unhesitatingly in the negative. That there may be circumstances under which it would be wise and prudent for executors to employ one of their number to perform nonexecutorial duties to the estate is well established (Lent v. Howard, 89 N. Y. 169 ), but the question of the advisability and necessity of such employment is one which arises upon an accounting of the executors. Such an inquiry is inappropriate in an action sufch as the present.

On a careful consideration of the whole will, and of the findings of the court below, and of the provisions of the judgment, we find nothing further requiring comment, and our conclusion is that the judgment appealed from should be modified to conform to the views hereinabove expressed, and as modified should be affirmed. Inasmuch as all the questions that have been raised and discussed have fairly arisen and required judicial settlement, the costs of all parties should be borne by the estate. All concur.