John G. Coster's Executors v. Coster , 1845 N.Y. LEXIS 551 ( 1845 )

The Assistant Yice-Chancellor.

By the twelfth article of the will, the absolute property in 11-106 parts of the personal estate was bequeathed to Henry A. Coster, in trust. As to the 11-106 parts of the real estate of the testator, he took an estate in trust, equal at least in duration, to the life of John H. Coster. Indeed, as the trustee was to receive the rents and profits, and. was authorized»to sell the lands in fee, I do not see any reason why the twelfth article of the will, did not vest in him the whole estate in that portion of the realty. If he converted it into personalty, then upon the death of John H. Coster, it became divisible, according to the terms of the article; and if it remained un-. converted, then on the same event, the trust terminated, and the lands were divisible by the same terms and among the same classes. The children of John H. Coster were to have a remainder in the land, only in the event of its remaining unsold; so that although their right to the ll-106ths was absolute after the death of John H. Coster, it was entirely contingent whether they would ever have any interest in possession in the real estate of the testator.

The better opinion in my judgment is, that the unlimited discretion to sell and convey all the lands, and the right to receive the interim rents contained in the twelfth article, carried the whole legal estate to the trustee. And at all events, such was its effect as to the existing personalty; and the land when converted, would be held in the same manner. And in the unsold lands, there was given at least, an estate for life, in trust.

In the next place, this trust was in several respects, a trust for the wife and children of John H. Coster, as well as for his benefit.

1. As a trust to sell the real estate, it was directly and specifically for the children and their issue, after the death of John H. Coster.

2. For the accumulations of the rents and income during the life of JohnH. Coster, there was an express trust for the benefit of his children.

3. The trust to apply the income to the use of John H. Coster, for life, for the support of himself and his family, was for the benefit of his wife and children, as well as for his own use and benefit. ( Woods v. Woods, 1 M. & C. 401; Jubber v. Jubber, 9 Simons, 503.)

By the will therefore, the estate was principally, if not wholly, .in the trustee ; John H. Coster had a life interest in its income ; his wife and children were entitled to share in the income, to such extent as the trustee might justly deem reasonable for their support; and after his death, his children and their issue were to receive the capital of the property, both real and personal, and the intermediate accumulations.

I now come to the codicil. No one can read it in connection with the twelfth article of the will, without perceiving that the testator designed to give to John H. Coster, the entire interest in the 11-106 of his estate. On the construction given to that article, by the counsel for the executors, John H. Coster had a life interest under the will, in all the property in question. By the codicil the testator professes to give to him an absolute interest, as distinguished from a life estate; the devise is to John, and his heirs and assigns. “ For that purpose,” as the codicil expresses it, the testator revokes the trust previously given for John’s wife and children. For what purpose, unless it was to give the whole estate to the husband and father?

Such being the plain intention, has the testator failed to effect it, for want of sufficient language to describe the object of his gift ?

His words are, “ all the property, estate or interests, whether real or personal,” which by the will he has devised or bequeathed in trust for the wife and children of his son John, and their children, or heirs, or either of them; he by the codicil, devises and bequeaths to John, absolutely in fee, and for his own proper estate; for that purpose revoking the trust.

I have shown that the whole 11-106 parts, were devised and bequeathed in trust. So far the description of the object is perfect.

Next, there was no part of those ll-106ths, but what was, or might be, in trust for the wife and children of John H. Coster” or some one of them. The application of the income was to be made for their benefit. The sale of the real estate, the investment of its proceeds, the re-investment of the personalty, the conversion of personal into real estate, and the accumulations from both sources; were all legitimate objects of the trust, which directly affected the children, and all those who were ultimately to possess and own the property.

It does not detract from the force of the description, that John H. Coster also had an interest, and a large interest, in the trust created by the twelfth article. It was none the less a trust for his wife and children, because he participated with them in its benefits. And the 11-106 were given in trust for them, as well as for him.

The codicil gives to John H. Coster absolutely, all the property and estate, which he had before given in trust for his wife and children, or either of them. He had by his will, given ll-106ths of his entire estate, in trust for him and them. There was no other trust in his will for their benefit, in any form. It follows that the same ll-106ths, is “ all the property,” which he describes in the codicil. There is no other property which answers the description. ■

But it is urged that the codicil only professes to give the same interests, which by the will were bestowed upon the wife and childr'en.

It is true, the word “ interests ” is used, but it is used disjunctively. The codicil cannot be restricted to the mere interests bestowed on the wife and children, when by its express words, it devises and bequeaths all the property and estate, out of which those interests are carved and limited.

The revocation of the whole trust, corroborates this construction of the previous description of the objects devised by the codicil. If those objects were merely the interests which had been given to the wife and children, under a trust for their benefit jn common with that of John H. Coster; the revocation would have been restricted to those interests, leaving the trust to stand. But if the purpose were, as the codicil declares, to give to John the absolute estate in the whole property which had been devised and bequeathed in trust; then it was proper and necessary to revoke the entire trust.

My conclusion is clear and unhesitating, that by the will and codicil, John H. Coster takes the absolute legal estate in the ll-106ths of the testator’s property, which are described in the twelfth article of the will.

There must be a decree accordingly, with costs to the parties, to be paid out of the estate of the testator.