Cushney and wife vs. Henry and others, 4 Paige Ch. 345

The Chancellor. The principal, if not the only question in this cause, is, whether the six grand children of Hester Henry, upon her death, became entitled to equal proportions of the one moiety of the premises in question; or whether the two children of G. W. Henry the elder are entitled to one quarter of the premises, and the four children of Henry Brevoort Henry, to the other quarter. This depends upon the construction of the will of Maiy Brevoort, their great grandmother ; for if they are to take as heirs at law of Mrs.

Henry, their grandmother, all the grand children, although by different parents, take equally, under the provisions of the revised statutes. (1 R. S. 751, § 2.) It is wholly immaterial in this case, so far at least as respects the beneficial interest of the parties in the premises in question, whether the legal estate was vested in the children of the testatrix and their issue, as her heirs at law, or in the trustees and the heirs of the survivor of them, in trust for the children of the testatrix and their issue.

As a general rule, courts of equity, in regard to trust estates, adopt the rules of law which are applicable to legal estates. (1 Saund. on Uses, 269. Garth v. Baldwin, 2 Ves. sen. 646, 655.) And I see nothing in this case to take it out of that general rule. The forty-seventh

section of the title of the revised statutes relative to uses and trusts, vests the legal title, in cases of mere passive trusts, in the person or persons entitled to the actual possession and whole beneficial interest in the trust estate. (1 R. S. 727.) But if this was a case coming within the provision of that section, the only effect of that provision would have been, to have vested the legal estate in one half of the premises in Mrs. Henry, for life, with remainder to her issue who might be living at the time of her death, in such proportions as is provided for by the will of her mother, Mrs. Brevoort. This, however, was an active trust, coming within the forty-eighth

section of the statute; as the trustees are authorized to sell the estate, and divide the proceeds after the death of all the children of the' testatrix. In order to give the purchaser a good title, under the decree in partition, it may therefore be necessary for the court to appoint the master who sells the property, or some other suitable person, a trustee to join in the conveyance, if the trust has devolved on the court, by the death of the surviving trustee, without heirs, or the only trustee in whom the legal estate ever vested.

To prevent any question as to the vesting of the legal estate in the purchaser, the decree in this case may therefore direct that any person or persons to whom the legal estate descended in trust, upon the death of the original trustees or any of them, be removed from such trust; and that a master, to be designated in the order of sale, be substituted or appointed the trustee of the legal estate; so that he may join in the conveyance as such trustee, as well as in his official character as master.

Updn the death of Nicholas Brevoort without issue, in 1798, one half of the beneficial interest in this lot became vested in Mrs. Hemy, for life, as the last surviving child of the testator, with remainder to such of her issue as might be living at the time of her death. The other half was vested in the two children of Abraham Brevoort, for life, or as a conditional fee subject to the contingency of their dying before the termination of the life estate of Mrs. Henry.

As Henry Brevoort survived his aunt, his one fourth of the beneficial interest in the lot is now vested in his mother, in fee, under the conveyance from him. And the share of his sister, who died in the lifetime of Mrs. Henry, is now vested in the children of Mrs. Bolrner, under the will. The estate limited to Mrs. Henry, was not an estate tail; and therefore it was not turned into a fee simple by the operation of the statute abolishing entails. The rule in Shelly’s case only applies to a limitation of a remainder to the heirs, or to the heirs of the body, of the first taker.

It does not apply to this case, where an estate for life only was given to Mrs. Henry, with remainder to her issue who might be living at the time of her death. The term issue, in such a devise, is a word of purchase, and not a word of limitation. (See Finch’s Ch. Rep. 280, and Coke’s Rep. by Thomas & Fraser, 263, note 15.) To ascertain whether the testatrix intended that the grand children of Mrs.

Henry should take per stirpes, as the representatives of their deceased parents, and not per capita, it will be necessary to examine that part of the will which provides for the distribution of the estate after the death of the last surviving child of the testatrix. She first directs the estate to be distributed among the issue of such of her children as shall have died leaving issue, and that the issue of each shall take as tenants in common. Then comes the provision under which the guardian ad litem of the two infant children of George W.

Henry supposes they are entitled to a fourth part of the estate,which would have belonged to their father if he had survived their grand mother.

That clause of the will is in these words: “ And if any child of my said, daughter should die in her lifetime, and leave issue, or if any child of either of my said sous should die- in the father’s lifetime and leave issue, and such issue shall be living at the time of the death - of the survivor of my said children, then such issue shall stand in the place of, and take such part of my estate as his, her or their parent would have been entitled to if living.” The counsel for the complainants, and for the other children of Henry Brevoort Henry, supposes this clause of the will was only intended to provide for the case of the death of a part of the children of Mrs.

Henry, or of her brothers, leaving issue; but that it was not intended to apply to a case where all died in the lifetime of their father, or mother, so that all the issue of such parent would stand in the same degree of consanguinity to the grand parent. I see nothing, however, in the will to induce a belief that such was the intention of the testatrix; especially, as she had, as to the rents and profits of the estate, already made a provision for the distribution of an equal share to the surviving child and to the issue of such as had died, per stirpes.

I have no doubt, therefore, that she intended that the children of each of her grandchildren who might happen to die before the time fixed for the final distribution of her estate, should take the shares which would have belonged to their parents if they had been living at that time. The death of all the trustees under this will, and without heirs, could not affect the equitable rights of the present parties.

In that case, the legal estate, which was limited to the heirs of the survivor, who refused to accept the trust, would probably revert to the heirs at law of the testatrix; but they would take it charged with the trusts in the will, in favor of the issue of Mrs. Henry, after her death, it appears, from the testimony in this case, that both of the sons of Mrs. Henry were in esse at the date of the will.

The limitation over to their children, in case of the death of those sons in the lifetime of their mother, is not liable, therefore, to the objection that it is a remainder to the children, or issue, of a person not in existence at the death of the testatrix. The two children of George W. Henry the elder, are entitled to the beneficial interest in one fourth of the lot in question ; and the decree’ must declare the rights of the several parties accordingly. And the usual directions for a reference to inquire as to the necessity of a sale, and as to specific and general liens, must be given in the decree.