Embury v. Sheldon , 50 How. Pr. 324 ( 1874 )

Van Vorst, J.

— By the express provisions of the will of his father, the share of Philip Augustus, in the trust estate, went to his brothel's and sisters; and as there were three surviving children, Anna, Daniel, and James W., each took, at the death of the testator, one-third part of the trust estate.

The estate was devised to the trustees to receive the rents, income and profits, and to pay the same over to the cestui que trusts in equal parts. .

The trust was to continue during, and to end with, the life of James W. Embury.

The testator did not intend that the share of either of the beneficiaries in the rents, issues and profits should, upon his or her death, during thé trust term, absolutely go to the surviving beneficiaries.

On the other hand, it is distinctly declared in the will, that in case of the death of either of the devisees, legatees and beneficiaries, leaving lawful issue surviving them, such issue should take of income, as well as principal, the share which the parent would have been entitled to if living; but should no lawful issue survive them, the share of the one so dying should go to the survivors of the children of James W., in equal proportions.

Now, the share to which the husband of the plaintiff was entitled, had he lived, was one-third of- the rents, income and profits, until the trust should terminate with the death of James W.

Upon the death of Daniel, the husband of the plaintiff, during the life of James W., by force of the will, his son Louis succeeded to all his right and interest in the trust estate.

I am of'the opinion that upon the death of Louis, intestate, his mother, the plaintiff, as sole heiress at law and next of kin, became entitled to the interest of her deceased son in the trust estate, and to his proportion of the rents, issues and profits thereof, being the one-third thereof, to be received and enjoyed by her until the death of James W., when the trust will end and become executed in the devisees and legatees to whom the principal of the estate is given.

Equitable estates follow the rules of legal estates as to their descent. '

The rules of law which regulate the dissolution or transmission of estates, have been by analogy extended to trusts; and whatever would be the rule of law if it were a legal estate, has been applied by the court of chancery to a trust estate (1 Spence Eq. P., 502; Perry on Trusts, sec. 357; Croxall agt. Sherard, 5 Wallace, 268; Bush’s Appeal, 33 Penn. S. R., 88).

In conclusion, therefore, I am of opinion that upon the death of the father, his estate and interest under the trust passed, under the will in question, to his son Louis; that the interest of Louis extends to the termination of the trust by the death of James W. The estate and interest so received by Louis, at his death, passed to his heir at law and next of kin, the plaintiff, who is entitled to one-third of the rents, income and profits of the trust estate.

There should be judgment for the plaintiff on. the demurrer.