Mullins v. Mullins — 61 N.Y. St. Rep. 468

Majority

p. 468

Joseph M. Mullins et al., by Guardian, etc., App’lts, v. Thomas M. Mullins, Impleaded, etc., Resp’t.

(Supreme Court, General Term, First Department,

Filed June, 1894.)

Headnote

Wn.ii—Construction.

The legal estate, in case of an express trust to collect the rents during the minority of infants and apply the same to their use, is in the trustee, and he is entitled to the possession of the premises.

p. 469

Appeal from judgment entered after dismissal of complaint at a circuit court.

W. H. Hamilton, for app’lt; Emmet & Robinson, for resp’t.

—This action was brought to recover possession of house and lot No. 326 East Fifty-seventh street, in the city of New York. It appeared upon the trial that one Ellen Hoey died seized of the premises on the 26th of January, 1890, leaving a last will and testament, which was duly admitted to probate, and letters testamentary issued thereon to the defendant, who was the executor therein mentioned.

By said will the said Ellen Hoey devised the premises in question as follows :

“Second. I give, devise and bequeath the house and lot known and described as number 326 East Fifty-seventh street, in the city of New York, unto my brother, Thomas Francis Mullins, in trust, nevertheless, to have and to hold the same during the minority of the six children of my brother, John Mullins, for the benefit of said children. * * * On said children attaining majority I give, devise and bequeath the house and lot devised in this paragraph to the said six children and the issue of any deceased child, and the survivor or survivors of them, share and share alike, issue to take per capita and not per stirpes, to have and to hold the same to their own use and behoof forever.

Upon the death of the testatrix and the probate of the will, the defendant went into possession of this house and lot, and has collected the rents thereof. All the six children .of John Mullins mentioned in the will were, at the time of the commencement of this action, infants under the age of twenty-one years ; and this action is brought by their guardian ad litem, claiming possession of the premises in question, upon the ground that there being no valid express trust to collect the rents-of the premises during the minority of the infants, there was a present devise of the same to the said infants, and they are entitled to the possession thereof.

The court below disposed of the case upon the ground that the provisions of the will of Ellen Hoey contravened the statute against perpetuities, in that the absolute power of alienation was suspended during the minority of the whole of the six children— necessarily, therefore, for more than two lives in being. This question, however, it does not seem to be necessary to consider in the disposition of this appeal; because it seems to us, upon an examination of the will, and being guided in the construction by the rule that the intention of the testatrix is to govern, if the statute against perpetuities was not contravened, there was an express trust to collect the rents during the minority of these infants and to apply the same to their use, in which case the legal estate would be in the trustee, and he would be entitled to the possession of the premises.

It is undoubtedly true that the draughtsman of the will has expressed the intention of the testatrix in perhaps inartificial language; but the intent seems to be perfectly manifest By a previous clause in the will the testatrix had given to her brother, the

p. 470

defendant, the house adjoining the one in question; and it was her intention that the children of her brother John Mullins should have the other house upon their attaining their majority; and it was furthermore her undoubted intention that the children of her brother John, during their minority, should have applied for their benefit the rents which might be derived from the premises in question. In order to effectuate, this object, she devised the premises in question to her brother Thos. F. Mullins, in trust to hold the same during the minority of the six children of her brother John for the benefit of said children; and then provided that upon the children attaining their majority, such children were to have absolutely the premises in question. Here is a plain intimation upon the part of the testatrix that the defendant is .to hold these premises for the benefit of these infants until they shall attain their majority, when they are to enter into full enjoyment of the bequest. It is clear that the holding of the premises for the use of the children implied the right upon the part of the trustee to enter into possession, to collect the rents, and to apply them to the use of the infants. This is a trust expressly recognized by the statute; and, as has already been stated, authorized the trustee to take possession of the premises, to collect the rents and apply them to the use of the said infants. Simply because a testatrix has used inapt language in order to carry out this plan, or design, is no reason why it should be, defeated. Words have been transposed, words have been supplied, and interpretations given to phrases not accustomed to be applied to them in order that expression may be given to the designs of a testator. Therefore, in a case such as the one at bar it is the duty of the court to place such interpretation upon the language used as effectuates the manifest1 intention of the testatrix.

We are of opinion, therefore, without determining the question as to whether there is a suspension of the power of alienation beyond that which is permitted by the statute, that the defendant, as trustee, has at least the right to the possession of the premises for the purpose of collecting the rents and applying the same to the use of the children of the testatrix’s brother John until such children shall attain their majority.

This view is sufficient to dispose of the question involved in this action, and, therefore, we think that the judgment appealed from should be affirmed, without our expressing any opinion upon the question as to the effect of the statute in respect to the suspension of the power of alienation.

The judgment should be affirmed, with costs.

Follett and Barrett, JJ., concur.