New Jersey Title Guarantee & Trust Co. v. Parker , 84 N.J. Eq. 351 ( 1915 )

Howell, V. C.

The essential difference between the two instruments above recited lies in the final destination of the fund of which Mr. and Mrs. Parker were life tenants. The earlier document provides for its distribution in accordance with Mr. Parker’s last will and testament, or, if he should die intestate, for its distribution among such persons as would be entitled to receive the same under the intestate laws of New York if he had died intestate and a citizen and resident of that state. It is obvious that in case it should be found that the instrument of 1903 is valid and is subsisting, the whole of the estate in question is disposed of thereby, and that in that case there is nothing left for the second instrument to operate on. It therefore becomes necessary at the outset to determine upon the validity of the earlier instrument. Tf that is irrevocable, as by its terms it purports to be, and is still in force, then and in such case the distribution of the fund must be in accordance with its provisions.

The general rule is that a completed trust, without reservation of power of revocation, can only be revoked by consent of all the cesluis; and that even a voluntary trust for the benefit wholly or partly of some person or persons other than the grantor if once perfectly created and the relation of trustee and cestui que trust is once established, will be enforced, though the settlor has destroyed the deed or has attempted to revoke it by making a second voluntary settlement of the same property, or otherwise, or if the estate by some accident afterwards becomes revested in the settlor. Perry Trusts § 104. This is the undoubted rule in New Jersey. Isham v. Delaware, Lackawanna and Western Railroad Co., 11 N. J. Eq. 227. There Thomas G. Trumbull conveyed land to his father, John M. Trumbull, in trust, to be leased until April 1st, 1840, the rents being payable to Thomas’s two sisters, and after that date to be sold for the highest price they would bring, the proceeds to be invested, the interest paid to said sisters during life, and to their children after death, until the youngest child should be twenty-one, and then the principal to be paid to the said children in equal parts per capita. In 1836 the two sisters joined with the trustee, their father, in reconveving the lands to the original grantor. It was held that the conveyance did not transfer the legal title to the original grantor. In Gulick v. Gulick, 39 N. J. Eq. 401, the husband conveyed lands to his wife, she to hold the same in trust for his benefit during his lifetime, and at his death to sell the same and divide the proceeds between his widow, if living, and their children or grandchildren. It was held that this was a trust which must be maintained inviolate, and that the husband and wife could not substitute another trust in relation to the same lands in such a manner as to affect the interests of the children and grandchildren. The next case in point of time is Pillot v. Landon, in the court of errors and appeals, in 46 N. J. Eq. 310, which points indirectly at the same result, but does not directly and positively-decide the point, because it was unnecessary to a decision of the appeal. This was followed by Taylor v. Draper, 71 N. J. Eq. 309, where Chancellor Magie uses the following words: “The right acquired by children under a declaration of trust by a father made in their favor for such a consideration differs in no respect from that which would result in a deed to them; when a voluntary settlement has been completely executed with no power of reservation reserved, it was held, in the court of errors and appeals, tliat it could not be annulled except with the consent of all the cestuis que Irasi. In the case of Crue v. Caldwell, 52 N. J. Law 215, Chancellor Magie, speaking for the court of errors and appeals, says: “The settlement was completely executed; it differs in form only from a settlement by conveyance expressly in trust, without power of revocation reserved, which when once perfectly created cannot be annulled without the consent of all the cestuis que trust. Unless the entire settlement can be successfully assailed in equity, and there set aside as the product of fraud, undue influence or mistake, the several parts of it must stand.” The same rule seems to prevail in Massachusetts and New York. Lovett v. Farnham, 169 Mass. 1; Sands v. Old Colony Trust Co., 195 Mass. 575; Mabie v. Bailey, 95 N. Y. 206. And also in England. Villers v. Beaumont, 1 Vern. 101; Boughton v. Boughton, 1 Atk. 625; Newton v. Askew, 11 Beav. 145.

When, therefore, Mr. Parker executed the original instrument he created a life estate in himself, with remainder to such persons as he should by his last will appoint, and in default of such appointment, to his heirs-at-law and next of kin under the intestate laws of the State of New York, and having executed a last will, in pursuance of the power and reservation contained in the trust deed, by which he gave the residuum of his estate, including the trust fund in question, to the children of his brother, he thereby created remaindermen who, under the provisions of the trust instrument, become entitled, under the rules of law above stated, to the capital of the fund. Having thus irrevocably disposed of the remainder, he could make no further or other disposition of it without the consent of the remaindermen whom he bad so created, and, inasmuch as such consent cannot be had, the fund goes irrevocably to them. ‘

This view of: the case renders it unnecessary for me to take up and decide the other difficult questions in the case which were so ably argued by counsel on both sides.

I will advise a decree in accordance with these views, and I will hear counsel at the time of the settlement of the decree on the question whether the fund should go in the first instance to Bichard Fay Parker, executor of Henry M. Parker’s will, or whether it should go directly to his two children as devisees.