Duffy v. Durant Land Improvement Co.

This action was brought to recover $1,000 which was paid upon a contract to sell certain lands in the city of New York, made by the defendant with one Patrick H.' Duffy representing the plaintiffs, upon the allegation that the title offered by the defendant in fulfillment of that contract was not such as the plaintiffs were bound to accept and pay for.

Various objections were raised to the title, but in the détermination of this appeal it is not necessary to consider them all. The premises in question belonged to one Charles ~W. Durant, who died on the 6th of April, 1885, a widower, leaving a last will and testament and a codicil thereto. He left him surviving his sons, Frederick C. Durant, Chas. "W". Durant, Jr., and Howard M. Durant, his daughter, Estelle D. Bowers, wife of Henry C. Bowers, and his grandchildren, Adele Durant and Victor Durant, children of his son Thomas E. Durant, who predeceased his father, all of whom were living at the time of the trial of this action. Estelle D. Bowers then had issue living, a son, John M. Bowers, second. By the said will a power of saie was given to the executors therein mentioned during the lifetime of the testator’s wife. By the codicil this limitation, upon the power of sale was eliminated. Such will, after making various devises and provisions for his sons, by the ninth clause gave, devised and bequeathed a fifth part of the rest, residue and remainder of his estate unto his son Frederick C. Durant, in trust, to safely invest the same in securities therein named and to apply the income thereof to the sole and separate use of his daughter Estelle during her natural life, and upon the death of said daughter leaving issue her surviving, then to pay over to such issue the principal of such share so devised in trust, to be equally divided

By his will the testator gave, devised and bequeathed a remaining one-fifth of the residuum of his estate to the Union Trust Company of New York, in trust for the benefit of his son Thomas F. Durant. The will further provided that upon the death of his son he gave and bequeathed to Adele, daughter of his said son, the sum of $60,000, and to Victor the sum of $40,000, and the remainder of said share he gave to his other children living at the death of said Thomas, equally to be divided among them. By his will he appointed his wife, who predeceased him, executrix, and his sons Charles W. Durant, Jr., and Frederick C. Durant, executors.

Objections were filed to the probate of both will and codicii, which were withdrawn in pursuance of an agreement made in June, 1885, between Mrs. Bowers and her three surviving brothers, which, in substance, provided that Charles should renounce his position as executor; that Frederick should resign as trustee under the clause above referred to respecting the interests of Mrs. Bowers in favor of the Farmers’ Loan and Trust Company; that the division of the testator’s realty should be made among the parties if they could agree u.pon one, and that Mrs. Bowers, as the owner of an Uxxdivided one-twentieth (being a part of the one-fifth devised in trust to Thomas F. for life and then over as above mentioned), should have the right to bring partition .within a specified period. Frederick C. Durant resigned as such trustee, and on the 17th of July, 1885, the Farmers’ Loan and Trust Company was appointed in his stead by order of the surrogate. Thereafter, on the 18th of July, 1885, Frederick C. Durant, as executor of Charles W. Durant (the elder), deceased, Charles W. Durant (the younger), the said Frederick C. Durant individually, and Howard M. Durant executed for a nominal consideration a deed to the Farmers’ Loan and Trust Company, as trustee for Estelle D. Bowers, purporting to convey an undivided fifth in two lots embraced in the plaintiffs’ contract upon the trust created in the will of Charles W. Durant in favor of his daughter, Estelle D. Bowers. Upon the same day the same grantors executed to Estelle D. Bowers a deed conveying in fee simple an undivided one-tiventieth

Upon this petition and proof of service on Mrs. Bowers only, an'order of reference to take proof and report with opinion was' granted. The referee made his report with an opinion that the

As has already been stated, there were various objections made to the title; but, in order to dispose of this appeal, it seems only necessary to consider one, and that is, were the proceedings taken by the petitioner in the Supreme Court such a compliance with the statute as authorized the trustee of Mrs. Bowers to convey ?

In the disposition of this question we do not propose to discuss the point as to the authority of the court to grant such an order as was made, because it does not seem to be necessary in view of the fatal defects which are presented by the proceedings themselves. It is to be observed that the only person who had notice of these proceedings was the life tenant, Mrs. Bowers; and in the petition she is represented as being the sole beneficiary of the trust, the remainderman being absolutely ignored. By the provisions of the statute under which these proceedings were taken, it is provided that no order directing a trustee to mortgage or sell lands shall be be granted unless it shall appear to the satisfaction of the court or judge that a notice in writing, stating the time and place of making the application therefor, has been served upon the beneficiary or beneficiaries of said trust at least eight days before making such application, if said beneficiary or beneficiaries are within this State, and adult. In case said beneficiary or beneficiaries are infants, lunatics,

It is, therefore, imperative, in order that the court shall proceed and make an order for a sale under these proceedings, that every beneficiary of the trust shall have notice that its interests are to be affected by the order made by the court. It is claimed that the child of Mrs. Bowers was a beneficiary, and no notice of these proceedings was given to it. In answer to this objection it is urged that there was no proof offered to show that this child was not properly before the court; and that as the statute says that such infant shall be brought into court by such notice as the court or judge may prescribe, it is left entirely within the discretion of the court or judge; and, in the absence of any proof to the contrary, it will be presumed that the court did its entire duty under the statute when the petition for leave to sell was before it; and that in the absence of direct and positive proof that this infant was not properly brought into court on that proceeding, it will be assumed that the court before which the application was made did give such notice as in its opinion was deemed sufficient to protect whatever interests in the matter the infant had. This seems to be carrying the doctrine of presumption very much further than has been done in any case to which our attention has been called. The papers before the court are recited in the order, and it reads: “ On reading the petition in this matter and on proof of due service thereof on Estelle Durant Bowers, the sole beneficiary of the said trust,” the reference is ordered. With such a recital, the court adjudging that Mrs. Bowers was the sole beneficiary of the trust, and that she had notice, where is there any presumption that the court directed notice to be given of this application to the child of Mrs. Bowers, of whose existence it was absolutely ignorant ? Legal proceedings cannot be supported by any such violent assumptions, which are contrary to the express statements in the record.

But it is sáid that it was not necessary to give notice of the application to any one other than Mrs. Bowers; that it was a trust of a specific portion of the estate To the trustee named, to be invested in securities, the income to be paid over to Mrs. Bowers during her life,

We think it was the clear intention of the statute that all parties who might be ultimately interested in the estate by reason of the provisions of the trust should have notice of the proceedings to affect the interest which they might subsequently have; and that in the use of the word “beneficiaries” the Legislature intended to embrace every possible interest. Under these circumstances, therefore, it would appear that the proceedings in question were defective because of want of notice to parties in existence who might ultimately be interested; and that the title offered was not such as the plaintiffs were bound to take.

The judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.