Wright and wife and Charles E. Miller against Ezra W. Miller, 8 N.Y. 9

Jewett, J. Both of the courts below came to the conclusion, that the validity of the deed of trust, executed by Hannah Ryerson before her marriage with Ezra W.

Miller, to Robert Campbell, can not be questioned by Miller, on the ground of fraud as against him, and in that I can see no ground to differ with them The assistant vice chancellor, as I think, clearly showed by his very able opinion, that the sales of portions of the trust property, to Westervelt and De Garmo were not made in good faith, but for the sole purpose of vesting the title in Miller discharged of the trusts created by the deed to Campbell, and that the suits respectively, in chancery, were brought by collusion with Miller, and at his suggestion, and that the decrees were fraudulently obtained, and therefore void as against his children.

The supreme court, although it differs with the assistant vice chancellor on that point, agrees with him in the opinion that the omission to insert, in the decrees, a day for the infant defendants to show cause after they became of full age was erroneous, and that that error might be examined, on a bill of review, or on an original bill; so that if there was no positive fraud shown in obtaining the decrees, yet if the facts on which they were obtained did not warrant them, they might claim relief, from" them in this suit against Ezra W. Miller, and I entertain no doubt as to the correctness of that conclusion.

The supreme court held that Mrs. Miller by her deed to Campbell, retained the absolute power of disposal of the property conveyed for her own benefit; and that conferred upon her the equitable fee simple, absolute and unqualified, and rendered the intended limitation over for the benefit of her children, qualified as it was, null and void. If that is the true construction of the declaration of trust contained in the deed to Campbell, the Supreme Court was right in respect to the consequences which it held followed. Mrs.

Miller would have such an estate, and the limitation over for the benefit of her children would necessarily be void, because it would be inconsistent with her absolute property. The reason assigned by Mrs. Miller for executing the conveyance to Campbell, as contained in its recital, was her inability to take the care, burthen and management of the estate of which she was seized, other than by the appointment of some suitable person as a trustee, to act for her and on her behalf. The objects which she manifested a desire to attain by making such conveyance, were: 1st.

A partition of the lands which she held in common with others. 2d. To make provision, out of said lands, for a suitable and permanent support and maintenance for herself during her natural life, free from the control of any other person, or persons, and to secure the residue, if any there should be, to such children and heirs as she might have, and afterwards to the children of her brother, Samuel E. Ryerson, and their heirs, in case she should die without leaving any child or children her surviving. And failing a child or children of her brother, then the residue to go to the trustee and his heirs.

To accomplish her purposes, she declared in the conveyance the trusts upon which it was made, in substance as follows: That her trustee, as soon as conveniently might be, in his discretion, should, with her consent, during her lifetime, or after her decease, either, absolutely sell, or lease for a term or terms of years, or otherwise, as he should think proper, so mwch and such parts of the premises conveyed to him, in the manner described, as should be necessary or advisable, to defray all expenses already accrued, or thereafter to. accrue, for or towards the bringing up, education, clothing or support of Mrs.

Miller during her natural Ufé; and for or towards the partition, improving, altering, or amending the premises conveyed, or any part thereof, or for the fulfillment of the purposes thereby intended; and that her said trustee should forthwith after any such sale or sales or such' lease or leases, pay, apply, and dispose of the moneys arising therefrom; in the first place: Towards the payment of all costs, charges and expenses incurred by him, for and towards the execution of the trusts created . by said deed (including his commissions), as also the expense of all partitions, exchanges, sales, leases, buildings, repairs or improvements, made to or put upon such estate, towards a settlement of the same tor the benefit of Mrs.

Miller. And secondly, That her said trustee, after the payment of all such costs, &c., and all such repairs and improvements, &c., before mentioned, out of the said purchase moneys and rents, should forthwith, from time to time, pay over, during her natural life, so. much of the residue thereof, for and towards her reasonable support and maintenance, as she might require the same, upon her own separate receipt only, and for her own use, free from any control of any husband she might thereafter marry.

And as to the residue of the moneys so arising from sales and leasings, if any there should be, upon the further trust that said trustee should from time to time, and as often as it might be practicable, put and place the same out at interest upon certain security mentioned, for the use and benefit of Mrs.

Miller during her lifetime, and for the use and benefit of her heirs after her death, as thereinafter mentioned; or to invest the same with the surplus interest from time to time arising-therefrom, in some good, profitable public stock, to be approved as before stated in respect to the securities to be taken; and after the death of Mrs.

Miller,.then, upon the further trust, that as soon as conveniently might be, the trustee should pay and apply the residue of said rents and proceeds arising from such sale or sales, lease or leases, occasionally for and towards the bringing up, education and support of such child or children as she should or might have, in a just and ratable proportion, as might be required during the life of such child or children, if she should leave any child or children her surviving. And lastly, in case Mrs.

Miller should die without leaving any child or children her surviving, then in trust that the trustee should pay the residue of said money, and all the net proceeds of the said estate to the child or children of Samuel Ellis ftyerson, the brother of Mrs.

Miller, or their heirs by descent then living, in equal and ratable proportion, according to the rules prescribed by the statute of distribution of intestates’ estates within this state, if any such children or heirs of such children by descent only be then living, and upon failure thereof, then the said trustee or his heirs were to retain and keep and apply the same to his and their own use forever, without any further account thereof. If, then, we regard this' declaration of trust by Mrs.

Miller as the disposition of her lands, conveyed to Campbell, as we must (4 Kent, 303), can we see from the language employed any intention on her part to reserve to herself an absolute power of disposition of the property, or any part thereof, for her own use?

For the intent of the settler in the creation of trusts, is what the courts look to, and not to any particular form of words; and that is to be carried into. effect, unless it contravenes some public policy of the law. (Lewin on Trusts, 137.) The deed and declaration of trust in this case were made by a young woman, the owner of undivided parts, as a tenant in common with others of a valuable real estate; expecting soon to be married, and contemplating, in that event, the probability of having children; unable to take the care and management thereof, except by a trustee to act in her behalf; evidently desiring to exempt it from the control of such person as she should marry, and in the first place to subject so much thereof, or its proceeds arising from sales or leasing, from time to time, as should be sufficient for her support and maintenance during her life, free from the control of her husband or any other person, after the payment of the costs and expenses and commissions, &c., of executing the trust; and in the second place, after her death to apply all the residue of the property and its proceeds for and towards the bringing up, education and support of her children, in a just and ratable proportion, as might be required during the life of such child or children, if she should leave any her surviving, and then to go to their heirs.

And if she should die without leaving any child her surviving, then in trust, as to the residue, for the child or children of her brother, S. E. Ryerson, or their heirs, and failing issue of her brother, then such residue to go to the trustee, Campbell, absolutely. Mrs.

Miller, so far as I can discover, manifested no intention or wish to reserve or retain any power of disposition of her property, as it then existed; but intended that it should be sold or leased by her trustee from time to time during her life, in Ms discretion, and that he, from time to time, should, out of the proceeds arising from the sales, rents and income, pay to her so much as should be required to defray the expenses of her reasonable support and maintenance, upon her own separate receipt, free from the control of any husband she might thereafter marry.

And for that purpose she authorized her trustee to sell or lease the whole or any part of the property, in his discretion, from time to time, and to make conveyances therefor. Her interest is in the proceeds of the sales and the rents and income of investments, merely, and limited in amount, sufficient to provide for her a reasonable support and maintenance during her life. The limitation over for the benefit of her children, is therefore valid, It is essential to the execution of a trust that the subject should be certain.

If the settler in this case intended to reserve to herself the power at her pleasure, to dispose of the property which she committed to her trustee to manage, and that the intended limitation over, extended only to what, if any thing, happened to remain of this property at her death undisposed of by her, then it would be void. But her power of disposition was limited to so much of the proceeds of the property only, as was sufficient to defray the expenses of her reasonable support and maintenance during her life. (Horwood v. West 1 Simons v. Stuart, 387.) The case of The Attorney General v.

Hall (Fitsgibbon Rep 314), cited by the supreme court, was this: The testator gave to his-son and the heirs of Ms body, all Ms real and personal estate, to his and their own use; and in-case his son should die leaving no heirs of his body living, he gave all and so much of his estate as his son should be actually possessed of at the time of his death, to the Goldsmiths’ company, for certain charitable uses; and he directed them, not to give his' son any trouble during his life concerning his estate. The son suffered a recovery of the real estate, . and it was held by Lord Chancellor King, Sir J.

Jekyell, Master of the Roll, and Reynolds, Chief Baron, that as to the personal property, “the limitation over was void, as the absolute ownership was given to F. Hall the son; for it is to him and the heirs of his body, and the company are to have no moré than he shall have left unspent, and therefore he had a power to dispose of the whole, which power was not expressly given him, but it resulted from his interest.” The. case of Flanders v. Clark (1 Vesey, Sen., 9) was this: M.

Flanders by a clause in her will, gave ¿6150 to her son, the principal to be paid by her executors at such time and proportion as they please; but that he should not dispose of it to any present or future wife; but if he died without issue, then it should revert to the testatrix’s family, and interest at the rate of 5 per cent to be paid by the executors for what should be in their hands till the whole be paid. The surviving executor directed it to be paid after a certain time to the son with interest: which time had expired.

It was insisted that the son should have no more' than an estate for' life in it, and not vested immediately, but the payment suspended till his dying without issue at his death; which as it was personal estate, must be the construction of the words. And that the contingency was good, on which it was to revert to the testatrix’s family. Lord Chancellor Hardwicke said the penning of that was particular, so that it could not be determined on any general rule, but on particular circumstances.

If the claim had rested on the first part, he would have thought it should go to him as an usufructuary interest during life only, and then over, but the construction must also be on the other-part of the clause, directing the executor to pay intérest till the whole was paid, which showed that the testatrix received it for his personal benefit: but she had a view that he might (die, before he made use of it, and therefore he should not dispose of it from her family. He also observed that in the case of the Attorney General v.

Hall the testator gave to his son his personal estate, and if he died without issue, then so much as shall remain, to the Goldsmiths’ company: the son died with issue, and it was insisted that he had only an usufructuary interest, and so to go over; but it was determined by Lord King, that he had the absolute property, and therefore the devise was void: for he had power to spend the whole, which was an absolute gift.

That the present case was stronger, for he was then living and therefore had the whole property agreeable to the intent of the testatrix, and accordingly the legacy was decreed to the son, without any security. The case of Ide v. Ide (5 Mass.

Rep. 500) was a devise to the testator’s son P. and his heirs and assigns forever, of certain lands, and also a gift of personal estate, with this clause: “and further it is my will, that if my son P. shall die and leave no lawful heirs, what estate he shall leave, to be equally divided between my son I. and my grandson N., to them and their heirs forever.” It was held that the devise over to I. and N. was void, as inconsistent with the absolute interest of the first devisee. Ch.

Justice Parsons, in delivering the judgment of the court, said that the limitation over is not of the estate devised to P. but of what estate devised to him he shall leave. ' From this expression it seems very clear that the testator, after having devised an express fee simple to P., intended also that he should have an unqualified power to dispose of it at his pleasure; and if he should dispose of the -whole, there would be nothing left subject to the executory limitation.

And therefore, whenever it is the clear intention of the testator that the devisee shall have an absolute property in the estate devised, a limitation over must be void, because it is inconsistent with the absolute property supposed in the first devisee. And a right in the first devisee to dispose of the estate devised at his pleasure, and not a mere power of specifying who may take, amounts to an unqualified gift.

In that case it was held that there was first, an express fee simple devised to P. in consequence of which, if not afterwards qualified, he might dispose of the lands at his pleasure; that the limitation over was only of what estate he should leave at his death; which was descriptive only of the estate of which he should then be in possession: that the implication was therefore necessary, that the testator intended, that P. might dispose of any, or all of the estate devised, and. leave nothing at his death: that the absolute unqualified interest in the estate devised was therefore given to P. which was inconsistent with the limitation over to I. and N. and was consequently void.

And to the same effect are the other cases to which the supreme court referred. All clearly support the principle which the supreme court held applicable in this case; namely, that when real or personal estate is conveyed to a trustee and the settler reserves to, or confers on the cestui que trust, by the declaration of trust, the absolute power of disposal of the property for his own benefit, the absolute and unqualified interest in the estate vests in the cestui que trust, and any limitation over of the property to another was inconsistent with the gift and therefore void.

Many other cases might be cited sustaining the same principle. McDonald v. Walgrove, 1 Sand. Ch. 275; Bland v. Bland, Prec. in Ch. 201; Beachcroft v. Broome, 4 Tenn. 441; Wynne v. Hawkins, 1 Brown Ch. C. 179; Sprange v. Barnard, 2 Brown Ch. C. 585; Bull v. Kingston, 1 Mer. 314; Ross v. Ross, 1 Jac. and Walker, 153, are a part of them. I differ with the supreme court in respect to the construction of the power conferred on Mrs. Miller by her declaration of trust. That court as I have already noticed, held that it conferred a power- of disposal of the whole property in trust.

I think it was limited to so much of the proceeds and income of the property as would be sufficient to provide for her a reasonable support and maintenance during her life. The power of Mrs. Miller to dispose of the property in trust, conferred, is very much like the power of the wife in the case of Upwell v. Halsey (1 Peere Williams, 651), that I.

M. being possessed of personal estate of the value of ¿6333, and having a wife and sister, but no issue, by will.gave ¿610 to his sister, and directs that such part of his estate as his wife should leave of her subsistence should return to his sister and the heirs of her body, and appointed his wife executrix. • On the testator’s death" the wife married the defendant, and afterwards died, upon which the sister sued the defendant, the second husband, for an account of this personal estate.

One objection was, that the widow had a power to dispose of the whole, and her marriage with the defendant was a gift in law, and an execution of that power. But the court said, this will is indeed ignorantly drawn, but if the court can pick out the meaning of it, that ought to take place. That as to what had been insisted on, that the wife had power over the capital or principal sum, that is true, provided it had been necessary for her subsistence, not otherwise; so that her mar riage was not a gift in law of this trust money.

Let the master see how much of this personal estate has been applied for the wife’s subsistence, and for the residue of that which came to the hands of the defendant, let him account. That decree was founded on the admission, that in a case in which the first taker had the power to expend an uncertain part of the thing given, a remainder might be limited over. The uncertainty of the sum which might remain formed no objection. In the case of Smith v. Bell (6 Peters, 68), the will of B.

G. contained the following clause: “Also I give to my wife Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts, legacies and personal expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and disposal absolutely; the remainder after her decease to be for the use of the said Jesse Goodwin,” the son of the testator.

It was held that he took a vested remainder in the personal estate, which came into possession after the death of Elizabeth Goodwin; upon the ground that-it was the clear intention of the testator. It was conceded that words could not have been employed, which would be better fitted to give the whole personal estate absolutely to the wife; or which would more clearly express that intention. But that the words employed to give the remainder of the estate to the son, after the death of the wife, expressed that intention with as much clearness as the preceding words did to give the whole estate to the wife.

That the limitation in remainder showed, that in the opinion of the testator, the previous words had given only an estate for life: and upon the ground that such was the intent of the testator the decree was made, sustaining the limitation over of the remainder to the son. My conclusion therefore is, that the complainants have a valid interest in the trust fund, and therefore a right to institute this suit to protect it. Their interest is vested and existing, although the time of its enjoyment will not arrive until the death of Mrs. Miller.

The trustee was required to invest and accumulate all the proceeds of the sales and leases of the land with the income thereof not required for the settler’s support and maintenance and expenses of executing the trust, and after her death to apply the residue of the estate for the support of her children. The interest of the complainants in the preservation and proper management of the trust fund is obvious.

And Miller having wrongfully obtained the possession and control of the fund and sold and otherwise appropriated it, the complainants having the reversionary interest in the trust, may properly apply to a court of chancery to have it restored and reinvested in trust for their benefit; and that the decree made by the supreme court is therefore erroneous and should be reversed, and that of the assistant Vice Chancellor should be affirmed, with costs in the supreme court. Gardiner, J., read a written opinion in which he arrived at the same conclusion with Judge Jewett.