Cassagne v. Ostrander — 20 N.Y. St. Rep. 146

Majority

p. 146

Leocadie A. V. Cassagne, Resp’t, v. James M. Ostrander, Impeaded, etc., App’lt.

(Supreme Court, General Term, Third Department,

Filed November 20, 1888.)

Headnote

1. Express trusts—What are valid—1 R. S., 2181, § 55.

It is provided "by 1 Revised Statutes, 2181, § 55, that express trusts may he created, for any or either of the following purposes: 1. To sell lands

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for the benefit of creditors. 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3. 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 auy shorter term, subject to the rules prescribed in the first article of the ti le. 4. To receive the rents and profits of lands, and to accummulate the same for the purposes and within the limits prescribed in the first article of the title. Held, that the statute limited the creation of express trusts to such as were created as therein prescribed. That the so-called trust created by the agreements as set forth in this case (16 N. Y. State Rep., 327), is not a valid express trust as it is not within any of the conditions above-mentioned. Noi can the trust be regarded as a several one for the life of each beneficiary thus rendering the life estate inalienable by the beneficiary,and the remainder alienable.

2. Same—Title to pbemises.

The title to the premises is vested in the several beneficiaries or shareholders, as tenants in common.

Appeal by the defendant Ostrander, from an interlocutory judgment entered on the order of the special term sustaining the demurrers of the plaintiff to the answer of said defendant Ostrander. The facts of this case are fully stated in 16 R. Y. State Rep., 327.

Pond & Brackett, for plt’ff j Wm. A. Pierson, for def’t Ostrander

In Cassagne v. Marvin, 16 N. Y. State Rep., 327, we expressed the opinion that the so-called trust created by the instruments set forth in this complaint is not a valid express trust, since it is not within any of the conditions for which express trusts are authorized by the statute. Further consideration of the agreements in view of the questions now presented, confirms the views there expressed. It was there intimated that it was possible that the trust might be regarded as a several one for the life of each beneficiary, thus rendering the life estate inalienable by the beneficiary and the remainder alienable.

It was not necessary for the purposes of the former case to hold that such was the true construction. The appellant asks us to hold so now. Our present examination leads to the conclusion that such a construction cannot be given to the instruments without doing violence to the plain intent of the parties to them.

The result is that the title to the premises is vested in the several beneficiaries or shareholders as tenants in common. Respecting the assignment by Eugenia Roche to the plaintiff, while the law requires such assignment to be made with the formalities requisite to pass title to real estate, equity no doubt will uphold an executed assignment upon consideration paid though not under seal. Our examination of the case suggests to us the question, not made’upon the argument, and therefore not decided by us and which may or may not be necessary to be considered before the final disposition of the case, namely whether under the agreements under which Marvin and Hall became the purchasers, they

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were simply constituted the agents of the owners for the care and disposition of the property and its income and proceeds with such a simple power of attorney, for the purpose as is exempted from the operation of the Revised Statutes, entitled “of powers,” 1 R. S. m. p., 738, § 134, or whether a power in trust was vested in them. 1 R. S. m. p., 729, §§ 58, 59, 74, 108, 119, 135 Heermans v. Burt, 78 N. Y., 259 .

Neither the answer of the defendant, nor the brief of his •counsel presents this question in either of its aspects.

No suggestion is advanced which tends to make the answer any defense to the cause óf action alleged in the complaint. We affirm the interlocutory judgment sustaining plaintiff’s demurrer, with costs, with the usual leave to answer on payment of costs.

Learned, P. J., and Ingalls, J., concur.