Livingston v. Murray

Headnote

Will — life estate — trustee of.

The plaintiff's testator by his will provided: “ Secondly. All the rest of my estate, of whatsoever kind, I hereby direct shall be divided equally among all my children, and in case of their death before me, among their lawful issue, the share of the child or children so dying shall go and be divided among his or her children; and it is my wish that my executors cause the portion that may belong to my daughters to be secured to them for their separate use during their natural lives, free from the control of any husband with whom they have been or may at any time be intermarried, and in case of their dying without issue, such portion of their said property as may remain at the time of her or their death, shall revert to her or their surviving brothers and sisters, or their issue in case of their death, as hereinbefore provided for. Subject, however, to the right of such daughter to dispose of one-half of such property by will in such manner as she may think proper.”

By a codicil thereto he further directed: “Sixth. Inasmuch as there may be some obscurity in my said last will and testament, as to the title to the portions given to my children, I do hereby give, devise and bequeath * * ' * to my daughters, an estate for life, remainder to the lawful issue of each respectively, if any such they leave, in fee simple and absolutely, subject to the right of my said daughters to dispose of one-half of their share by will, as in my said last will and testament provided, and also subject, however, to the power in trust to sell and convey given to my executors, or such as may qualify, and the survivors or survivor of them. * * * In case any of my said daughters die without leaving issue, then such portion of her share as she shall not have devised or bequeathed, as herein or therein provided, shall pass to her or their brothers and sisters, or to their issue, in case of their death, as in said will provided.”

Held (1), that each daughter took an estate for life in her share, without the right to control or reduce the capital except by her will; (2), that the court had power to appoint a trustee for the protection of the daughters and those in remainder.

Appeal from a judgment entered on the report of a referee. This action was brought to secure the judicial construction of

the will of James B. Murray, deceased. By the judgment entered in the action, the appellant was declared, entitled to a life estate only, and her share was directed to be transferred to the New York Life Insurance and Trust Company, to be held by it as her trustee; and the income thereof paid to her during her natural life.