E. Wood and others vs. J. B. Wood & S. Wood, 5 Paige Ch. 596

The Chancellor. Although the father of these complainants has made a most singular, and probably a very in- ■ discreet disposition of his property, considering the situation of his family and the tender ages of his children at the time of his death, I cannot perceive that the defendant, J. B. Wood, has done any thing, or has attempted, or even claimed the right to do any thing which he had not reason to believe it was his duty to do, as the executor of his brother and the testamentary guardian of the complainants, and as a faithfui trustee of the decedent's property, under the will.

So fair as the trusts of a will are valid and consistent with the rules of law, the executor and trustee is bound to carry them into effect, whatever he may think of the wisdom of the testamentary disposition which the testator had thought proper to make of his property; unless he is excused from a literal performance of the trust, by the consent of all parties, either directly or indirectly interested in the execution thereof, and with the sanction of the court of chancery, where the rights and interests of infants or of married women are concerned.

And where the right or interest of the cestui que trust in the trust property is rendered inalienable, by the provision contained in the sixty-third

section of the

article of the revised statutes relative to uses and trusts, the trustee cannot, even at the request of the persons beneficially interested, and with the assent of this court, do any act, or consent to any different disposition of the estate, which would be a virtual alienation of the property devised to him in trust.

But where the testator has directed the trust fund to be invested in the purchase of land in a partiular place, and required the trustee to apply the rents and profits of such land for the use of the cestui que trust during his life, or for any shorter period, this court may, with the assent of all persons who have either vested or contingent interests in the fund or in the lands to be purchased therewith, authorize the trustee to invest the fund in lands or other real estate in another place, upon the same trusts.

And if any of the persons who are thus interested are infants, and within the jurisdiction of this court, the chancellor may assent to such change of investment in their behalf. Also, where a testamentary guardian holds a fund for the benefit of infants, in his character of guardian merely, the court may change the investment from that which the testator has directed, even without the consent of such guardian, where it is manifestly for the benefit of the ward that such change should be made.

It is necessary, therefore, to examine this will, for the purpose of ascertaining the validity of the several provisions thereof, and determining the nature and extent of the several interests of the parties to this suit, and of other persons, in the estate .of the decedent, under the will or otherwise.

Although the testator directs all his estate to be sold, and one third of the proceeds to be invested for the rase of his xvife during her widowhood, it does not appear, by any necessary implication from the xvill itself, that he intended this provision to be in lieu of dower in the real estate of xvhich he died seized. The xvidow is not therefore obliged to elect betxveen that provision and her dower.

The question has frequently been discussed in the English court of chancery, how far and when a legacy or annuity to the wife, charged upon the real estate of the testator, is to be considered as a provision in lieu of doxver, and there have been many conflicting decisions on the subject. (See Arnold v. Kempstead, 2 Eden’s Rep. 237, note; and French v.

Davies, 2 Ves.jun. 572.) Z am satisfied, however, from an examination of the American, as xvell as the English cases, that a devise of all the testator’s real and personal estate to trustees, to be converted into money, without any particular designation of the real property to be sold, and giving to the widow an annuity or other-provision out of such mixed fund, is not, of itself, sufficient to show that the testator intended that her interest in the land, as tenant in dower, should be sold as a part of the estate; so as to make it necessary ¿for the widow to elect between such dower and the provision contained in the will.

The widow in the present case is therefore entitled to both. Neither is it necessary that the widow should go to the state of Ohio with, her children, to entitle her to the six per cent, per annum on the amount of one-third of the property.

The annuity is made payable at the house of the trustee in the state of Ohio; and if he resides in that state and has a dwelling house there, and has actually invested the third of the property, out of which her annuity is payable, in that state, as directed by the will, she must go there to receive the semiannual payments, or must employ an agent or attorney to receive the payments at the place designated by the testator.

This investment was not intended by the testator to be made In the purchase of real estate; but, on the contrary, he intended that this portion of his estate should be invested in loans upon bond and mortgage, or in the purchase of stocks, which would yield a semi-annual income ; so as to enable the trustee to pay the six per cent, per annum to the widow, without any diminution of the capital of the fund.

So far as relates to the investment of this part of the fund, during the life, or widowhood, of the wife of the testator, I can see no legal objection to the disposition which the testator has thought proper to make of this third of bis property. He had a right to direct how and where the investment should be made for the benefit of the annuitant, and the time and manner of the payments.

And as the infant complainants are entitled to the reversion of the two thirds thereof after the death or re-marriage of their mother, the place of the investment cannot be changed, except by the sanction of this court, even if the widow and trustee both consent to have the fund invested elsewhere.

If the direction to invest the two-thirds in land, upon the re-marriage of the widow, and the limitations over of the ultimate remainder in case of the death of all the complainants without issue before they come into the enjoyment of the estate, are valid,it follows that the mode of investment cannot be changed, even with the consent of all persons who are now in existence, as it is impossible to say who will be the heirs of the children, of the blood of their father, at the death of the last survivor.

I have arrived at the conclusion, however, that the limitation over to the heirs of the blood of the testator is void, as being too remote. The absolute power of alienation cannot be suspended beyond two lives in being at the death of the testator. And this case does not come within the exception contained in the sixteenth

section of the

article of the revised statutes relative to the creation and division of estates; (1 R. S. 723 ;) for the limitation over does not depend upon the death of all the children without issue under the age of twenty-one, as they may, by the terms of the will, be kept out of the enjoyment of the property until they are twenty-two, if the trustee thinks proper. And upon the death of two of the children without issue, the third would take the ultimate remainder in fee, ag the only heir of the blood of the testator, under the provision contained in the 17th

section of that

article of the ■ revised statutes. This objection is equally applicable to the contingent limitation over, to the heirs of the testator’s blood, of the lands directed to be purchased for the infants with another third of the testator’s property, after the death of all of the children without issue.

It may, perhaps, be supposed that the provisions of the revised statutes do not apply to this case, as the.lands directed to be purchased are in another state, where the common law rules prevail; by which rules a contingent limitation over, at the termination of any number of lives in being at the creation of the estate, is valid.

But the laws- of this state, which was the testator’s domicil, must govern the disposition of his personal estate, and the proceeds of his real property situate here; and no valid disposition could be made of any of his property by will, which disposition would be illegal by the laws of this state. The direction, therefore, to invest the proceeds of the testator’s property in the purchase of Ohio lands, upon trusts which are illegal here, cannot be sustained.

The contingent right of the trustee to receive the rents and profits of the share of each of the complainants, after the age of twenty-two, even if it were valid in other respects, is not such a trust as is authorized by the revised statutes; as by the express direction of the testator the conveyances for the lands purchased are to be taken in the names of the children, and not of the trustee.

And the authority to receive the rents and profits and apply them to the use of the children for life, or for a shorter period, in the discretion of the trustee, after they arrive at the age of twenty-two, is not valid as a power in trust merely; as it is necessary that the trustee should have the legal estate to enable him to collect the rents and profits in his own name, either' by distress or otherwise.

It is because a seisin of the legal estate is necessary to enable the trustee to collect the rents and profits, that a devise of the legal estate in the rents and profits to a trustee for a term of years, or for any other limited period, carries with it the legal estate in the land for the same term or time, by necessary implication, at the common law. (See Stile v. Tomson, 2 Dyer’s Rep. 210, a. Courthope v.

Heyman, Carter’s Rep. 25.) The same objection applies to the devise of the legal estate in the rents and profits of the lands to be purchased, to the trustee, for the support and maintenance of the children during their minorities, as a valid trust, or power in trust, under the provisions of the revised statutes.

And as the legal title to the land, to be purchased with the share of the estate belonging to each infant, is directed to be taken in the name of the infants respectively, the right to receive the reñís and profits in the character of trustee, or in any other way than merely as the testamentary guardian of the infants, is wholly inconsistent with the nature of their legal estate in the land; as, by the provisions of the revised statutes, the infants cannot hold the legal title in trust to let another trustee receive the rents and profits in trust, for their support as far as is necessary, and to keep the residue for his own use.

The one-third of the net proceeds of the testator’s property, and the reversionary interest in another third after the death or re-marriage of the widow, subject to the paymenl which is to be made to her in case of such re-marriage, belongs therefore to the infants absolutely; and their uncle has no interest therein, or control over the fund, except in the character of testamentary guardian, and for their exclusive benefit.

There being no legal trust vested in the testamentary guardian, in the character of trustee, which can be sustained under the provisions of the revised statutes, this court may lawfully control the exercise of the legal power of the guardian over the property, by giving such directions in relation to the investment of the infants’ shares thereof as may be most beneficial to them, under the existing circumstances, which were not contemplated by the testator at the time of making his will.

I will therefore proceed to consider the question, whether it. is expedient for the court to give such directions to the testamentary guardian in the present case. it is very evident, from the will, that t.he decedent, for some reason which he has not explained, was very desirous that his widow and children should leave this state, where his as well as her relatives resided, and should remove with his brother, the trustee, to the state of Ohio; where, it is admitted, none of them had any relatives, or even acquaintances.

The trusts of the will, which he probably supposed to be valid, were framed in reference to such a removal and location of his family in that state. It turns out, however, that the widow is not willing to remove with her infant children to so great a distance from the residence of her friends, and to locate herself entirely among strangers. And it appears to the court that her objections to such a change of residence are not unreasonable under the circumstances of this case.

I have no doubt as to the right of a parent or guardian to change the residence of his infant children, or wards, from one state to another, provided such change of residence is made in good faith and with a view to their benefit; subject, however, to the power of this court to restrain an improper removal of an infant by his guardian, or even by his parent. It must be a very extreme or special case, however, which would induce this court to interfere with the natural rights of a parent in this respect. That such a power exists in the court of chancery, was settled by Lord Thurlow, in the case of Creuze v.

Hunter, (2 Cox’s Ca. 242.) The jurisdiction of the court on this subject was again exercised, by Lord Eldon, in De Manneville v. De Manneville, (10 Ves. 52;) where the father of the infant, a French emigrant, was restrained from removing the child out of the jurisdiction of the court.

And in the recent case of the nephew of the duke of Wellington, a son of Lord Maryborough, the house of lords, with the entire concurrence of Lord Chancellor Lyndhurst, and of Lords Redesdale and Manners, two former chancellors of Ireland, affirmed the decision of Lord Eldon, in refusing to a profligate father the custody and control of the persons of his infant children. (See Wellesley v. Wellesley, 2 Bligh’s Parl. Rep., N. S., 124. 1 Dow & Clark, 152, S.

C.) This court has the same jurisdiction over a testamentary guardian as it has over a guardian in socage, or any other guardian; and in this case it would be improper to permit the testamentary guardian to take the infant complainants from their mother and carry them among strangers, several hundred miles from her residence, at their present tender ages. He must not take them from her, therefore, without the further order of the court; which order he is at liberty to apply for whenever it may be proper.

As the third of the estate was given to him, charged with the expense of the education and support of the infants during their minority, or with so much of such expense as the income of their share of the estate falls short of that object, if he accepts the legacy to himself he must apply so much thereof, from time to time, for their support and maintenance, as may be necessary in addition to the income of their own property; but the whole of such expénse is not to exceed what it would have cost for their maintenance and education in the manner contemplated by the testator in his will.

And as the testator has directed that his sons should be educated for farmers, the court will so far regard his wishes, in this respect, as to require that they shall be put to that employment, either by or under the direction of their testamentary guardian, as soon as they are old enough; and that they' shall be kept at farming during those seasons of the year when it is usual for farmers to keep their children so employed.

As the trusts of this will are many of them illegal, and none of them can be carried into effect in the manner contemplated by the testator, and as the testamentary guardian and executor appears to be willing to do what is proper, and consistent with his duty as a faithful trustee, I would recommend to the mother and the next friend of the infants, to endeavor to make some amicable arrangement with him for the investment of the two-thirds of the property, in this state; and for the custody and support of the infants until the boys are old enough to be put to farming.

Any such arrangement which may be thus made between them and the executor and guardian, and which is consistent with the rights and interests of the infants, and the safety of their persons and property, will receive the sanction of the court. In the mean time I shall suspend the entering of any decree or order, for the present, to enable the parties to perfect such an amicable arrangement if possible,