Reynolds v. Denslow — 61 N.Y. St. Rep. 818

Majority

p. 818

William T. Reynolds, as Executor, etc., Resp’t, v. Van Buren Denslow et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 27, 1894.)

Headnote

Trusts—Power.

Devise to executors in trust to sell, upon the life tenant’s death, the property, divide the proceeds into several equal parts, and distribute them as directed, and if, in the meantime, they deem it best, to convert the estate into cash and pay the income to such life tenant, creates a valid power in trust.

Appeal from a j udgment in favor of plaintiff.

Van Buren Denslow (Benj. B. Kenyon, of counsel), for app’lts ; J. DS. Van Cleef (Milton A. Fowler, of counsel), for resp’t.

—The object of this action was to procure a judicial construction of the last will and testament o! Walter F. Denslow, deceased. The questions for determination are presented by the twelfth, thirteenth, and fifteenth clauses of the will, which read as follows: “ Twelfth. I give unto my wife, Susan F. Denslow, the use, during her natural life, of all my real estate, of every kind, of which I die seized of, with full power to collect and use the income and profits therefrom. Thirteenth. At the death of ply wife, or in case she shall not survive me, I give and devise all my estate, both real and personal, and not herein otherwise disposed of, unto my executors herein named, in trust for the following uses and purposes, viz.: To sell and convert the whole thereof into cash; and for that purpose I hereby give and grant unto them full power, and authority to sell the same, and give and deliver good and sufficient deeds and other instruments therefor; and I order and direct that they divide the proceeds of such sales into six equal parts, and that they pay over and deliver unto Ruby Brooks one of such equal sixth parts; and, in case that she shall not survive my wife, then I direct that said one-sixth part be paid over and divided equally among the children of said Ruby Brooks, share and share alike; and, further, that said executors pay over and deliver unto .the said Olive Sykes, wife of said Edmund T. Sykes, two of such equal' sixth parts, and in case she shall not survive my said wife, then that they pay over and divide the same equally among the children of said Olive Sykes who shall survive my wife, share and share alike; and, further, that said executors pay over to my brother Oliver 0. Denslow one of said equal one-sixth parts, and, in case he shall not survive my said wife, that then they pay oyer and divide the said one-sixth part equally -among the children of said Oliver 0. Denslow who shall survive my wife; and, further, that said executors pay over and deliver one of said equal one-sixth parts equally among the children of my brother John W. Denslow who shall! survive my wife, share and share alike; and, further, that said executors pay over and divide one of said equal one-sixth parts equally among the nephews and nieces by blood' of my said wife, Susan F. Denslow, share and share alike.” “ Fifteenth. If, at any time during the lifetime of my wife, my executors hereinafter named shall, in their opinion,

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deem it best for the interest of my Estate that any or all of the real estate of which I die seized of should be sold, and my wife shall consent to such sale, then and in that case I hereby authorize and empower my executors hereinafter named to sell and convey any and all of my real estate, and-give good and sufficient deeds therefor ; and I hereby direct them to invest the proceeds of such sale or sales upon securities authorized by law, and the rules and practice of the courts, and quarterly, half-yearly, or yearly, as they shall receive the income therefrom, to pay such income over unto my said wile, Susan F. Denslow, during the term of her natural iii'e.”

The cause was tried at a special term of the court, and a judgment rendered in favor of the validity of the will. The defendants have appealed from the judgment.

It is the contention of the appellants that the devise of the real property to the executors in trust is invalid as a trust because it fails to empower the trustees to receive the rents and profits, and cannot be valid and executed as a power in trust because the purpose for which the trust was intended to be created is one for which a valid trust is authorized by subdivision 2 of § 55 of the statute of uses and trusts. The respondent does not contend that the devise of the property to the executors was valid as a trust, but he insists upon its validity as a power, and so the trial court decided. The statute upon which the judgment is based is this: “ A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall, vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.’’ 4 Rev. St. (8th Ed.) p. 2438, § 56.

While it is true that all express trusts are abolished, except those enumerated in § 55 of the statute, yet that statute has not stripped the owners of property of the power to impress upon their estates limitations possessing the characteristics of trusts. Trust limitations, if lawful, may be effectuated as powers in trust. Tire statute does not enumerate or define the acts which may be done under a power, as m the case of trusts, and they are practically unlimited. They may be created for any lawful purpose by any language which indicates an intention to bestow them, and to do any act which the grantor might himself lawfully perform. The cases of Blanchard v. Blanchard, 4 Hun, 288 , and Belmont v. O'Brien, 12 N. Y. 405 , are authority for the foregoing statements. It is easily gathered from the language of § 56, above quoted, that § 58 of the statute was not aimed against the creation of powers. The provision is that, where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate vests, in the trustee,—that is the only effect of such an effort,—but, if the trust authorizes the performance of any act lawful under a power, it shall be valid as a power in trust. It requires no argument to prove that it was perfectly lawful for cthis testator to bestow a power upon his executors to sell his prop

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erty, divide the proceeds into six equal parts, and distribute them as directed. In the case of Germond v. Jones, 2 Hill, 569 , the testator devised and bequeathed all his real and personal property to his brother, in trust to sell and dispose of the same, and out of the proceeds to pay debts and legacies; the residue to belong to the trustee. It was held that the trustee took no estate in the land ; that the will created a power in trust, and upon the death of the testator the fee descended to the heirs. In that case, Judge Bronson, who delivered the opinion of the court, said: “ In most of its features, this appears to me to be a very plain case. The testator has devised all his property, real and personal, to his brother, Smith Hermond, in trust to pay debts and legacies. This was a good express trust, or rather power in trust, under our new Code, in relation to uses, trusts and powers. 1 Rev. St. p. 728, §§ 55, 56, 94. At the common law the estate would have passed to the trustee, but then even his widow would not have been entitled to a dower. A woman is not dowable of a trust estate, but, under our statute, Smith Grermond took' no estate whatever in the land. He had authority to sell, but was not entitled to receive the rents and profits; and in such a case the trust is nothing more than a power, and the land descends to the heir subject to the execution of the power.’’

There have ever been powers in the nature of trusts, and even some of the trusts specified in § 55 are simply powers in trust. They may be created for many useful purposes, and it was wise to leave their purposes unrestricted. We, therefore, concur in the judgment and all its provisions.

Some minor and unimportant points raised by the appellants have received examination, but they present no error.

The judgment should be affirmed, with costs.

All concur.