Brown v. Harris , 1857 N.Y. App. Div. LEXIS 151 ( 1857 )

By the Court, T. R. Strong, J.

The assignment by Saloma Harris to the defendant Crittenden, of the bond and mortgage in question, is in terms absolute, of all the right, title and interest of the assignor, with a provision that the avails of the mortgage are to be applied to the necessary support and maintenance of Sarah Harris, during her natural life. It is not claimed, on the part of the defendants, that any beneficial interest in the bond and mortgage passed to the assignee by the assignment; but it is conceded that the assignment was to him merely as trustee for the benefit of Sarah Harris.

It is insisted by the plaintiff’s counsel, that the assignment, being for the sole benefit of Sarah Harris, vested' the absolute ownership in the bond and mortgage in Sarah; and if not, that the assignment was void, as no such trust could be vested, and the ownership passed to the plaintiff as administrator, under the assignment of Sarah Harris to him; relying, in support of these positions, upon the provisions of the revised statutes relating to trusts. (1 R. S. 728.) It is sufficient, in reference to this part of the case, to say that those provisions, except as to the limitation oí future or contingent interests, relate to real estate only, and are therefore wholly inapplicable to the present case. Trusts in respect to personal property are now allowable, as before those statutes, no prohibition or restriction being imposed upon them by statute, except as aforesaid. (1 R. S. 773, § 2. Kane v. Gott, 24 Wend. 641. Depeyster v. Clendining, 8 Paige, 295. Gott v. Cook, 7 id. 521.)

The trust in the present case being valid, the entire legal interest in the bond and mortgage passed to the assignee, for the purpose of the trust, and he was entitled to collect and receive payment as the moneys became due.

The terms of the trust, as already stated, are to apply the avails for the necessary support and maintenance of Sarah during her life. This means, as I understand the language, that the avails, so far as they shall be necessary for her support and maintenance, shall be applied thereto. The beneficial interest of Sarah does not necessarily embrace the whole fund; it extends only to what shall from time to time be necessary for the purpose specified. The assignor retained an equitable title to the fund, beyond what should be required for that purpose, and if the fund should not be exhausted in the necessary support and maintenance of the cestui que trust, during her life, the balance remaining would belong to and be disposed of as part of the estate of the assignor, she having deceased. It follows, that Sarah, the cestui que trust, could not, as such, assign the whole fund, as she has assumed to do; her power of disposition was limited to her interest, depending upon what should be needed for her support. The trustee must retain the fund for her life, except so far as it may be required for that object.

[Monroe General Term, September 7, 1857.

It is not alleged in the complaint, nor is there any proof that it has become necessary to use any portion of the funds for the support of Sarah, which the defendant has refused or neglected to pay over.

The action cannot be sustained in respect to the interest of the plaintiff as one of the next of kin of Saloma Harris, in the residuary interest of Saloma, in the bond and mortgage. The, next of kin take subject to the trust, and to the legal title of the trustees to the fund for the purpose of the trust, until it shall be performed or otherwise discharged,

There is not, in my opinion, any ground furnished by the proofs upon which this action can be supported.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Johnson, T. R. Strong and Welles, Justices.]