Read v. Williams , 4 Silv. Sup. 295 ( 1889 )

Van Brunt, P. J.

It seems to be clear that the direction to sell the real estate, and convert the same into money, worked an equitable conversion of the realty into personalty at the testatrix’s death. The direction to sell was not for thepurpose simply of distribution under the residuary clause contained in the second codicil of the will, which clause is now assailed. Such conversion was necessary for the carrying into effect the previous provisions of the will, which are valid, and as to which no question is made. The point, therefore, does not arise in the case of a will in which the direction to convert was manifestly given to carry into effect the clause which is claimed tobe invalid. It having been held in Wager v. Wager, 89 N. Y. 161, and in Horton v. Cantwell, 108 N. Y. 255, 15 N. E. Rep. 546, that as to personalty an executor is always a trustee of the persons entitled to such personalty, the next of kin of a testator have always the right to file their bill to enforce the trust in their favor, even if the assertion of their rights may conflict with some of the terms of the will under which the executors qualified, if such provisions are invalid. The trust exists; the object of the bill is to ascertain the persons entitled by law to benefits by the trust. In the case last cited the plaintiff was denied the right to file a bill because she never could be entitled to any share of the testatrix’s personal estate. In determining whether the residuary clause in question is valid or not, it does not seem necessary to enter upon any long discussion. If the clause is to be deemed as creating a trust, it is clearly invalid, under the principles laid down in the case of Holland v. Alcock, 108 N. Y. 312,16 N. E. Rep. 305. In that case it was held that the absence of a defined beneficiary, entitled to enforce its execution, is, as a general rule, a fatal objection to the validity of a testamentary trust, and the fact that the trustee is competent and willing to execute the trust does not validate it. The validity or invalidity of a trust cannot depend upon the will of a trustee. In the case at bar no beneficiary is named, and therefore there is no one’entitled to enforce the execution of the trust. But it is claimed that the bequest is valid as a power. It is conceded that the power contained in the clause in question comes under the head of “special powers in trust,” as defined in the Revised Statutes, but it is said such a power is to be clearly distinguished from a trust; that the words “in trust” are used for purposes of classification only. We think, however, that the words “in trust” were used by the revisers advisedly, and that an examination of the sections of the Revised Statutes relating to powers in trust shows that, in order to render a power in trust valid, the same certainty as to beneficiary must exist as in the case of a trust. -The statutes¹ provide: “Sec. 96. Every trust power, unless its executioner nori-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of tlie parties interested.” The trust power in question, not expressly stating that its execution or non-execution shall depend upon the will of the grantee, is imperative; the performance of which, if it is a valid power, may be compelled in equity for the benefits of the parties interested. Therefore the person, or class of persons, to whom the disposition of the estate is made by the power, must beso well defined that they can enforce the performance of the power in trust, unless its execution or non-execution is made expressly to depend upon the will of the grantee. In the case at bar we have seen that the trust power is imperative, and we have also seen that no person, or class of persons, have been named who can enforce its execution. Consequently the trust power is void, as not complying with the statute. If there was any doubt about this proposition, it seems to be set attest by the subsequent provisions of the statute, all of which assume that the beneficiaries of the power are sufficiently well defined to be capable of enforcing the execution of the power. Section 97 provides that “a trust power does not cease to be imperative where the grantee has the right to select any and exclude others of the persons designated as the objects of the trust. ” Here the statute calls it a “trust.” In such a case the subject-matter of the trust is said to vest in all the persons designated as the objects of the trust, subject to be divested as to some by the execution of the power. This is plainly intimated in section 100, which is as follows: “Sec. 100. If the trustee of a power, with the right of selection, shall die leaving the power unexecuted, its execution shall be decreed in equity for the benefit equally of all the persons designated as objects of the trust. ” The trustee of the power who had the right of selection, in whose judgment the grantor of the power depended, having died, there being no person to exercise the selection which the grantor of the power intended, the estate remains vested in all the persons designated as objects of the trust. The necessity of definiteness in the designation of the persons, or class of persons, designated as objects of the trust, is also shown by section 101, which is as follows: “Sec. 101. Where a power in trust is created by will, and the testator has omitted to designate by whom the power is to be exercised, its execution shall devolve on the court of chancery.” The object must be so well defined by the grantor of the power that the court of chancery can execute the power, if, the testator has omitted to designate by whom the power is to be exercised.

How could the court of chancery execute the power contained in the codicil in question ? It is clearly impossible. But it is suggested that “it -would be a simple matter, if made necessary by the omission of the executors to appoint, to ascertain the probable wishes of the testatrix on a reference, as from the whole context of Mrs. McCoskry’s will she was evidently of a charitable disposition, and a reference would easily show what charities she was interested in, and such would naturally be the proper recipients of her bounty;” and we are referred tó the case of Dominick v. Sayre, 3 Sandf. 555, as an authority for this extraordinary procedure. An examination of this case shows that nothing of the kind was attempted. In that case the disposition authorized by the power was limited to a particular class, its object being the male descendants bearing the name of Dominick, of the family of the testator, and therefore could be and should be executed by a court of equity, and a reference was ordered to ascertain what male descendants there were who were entitled to participate in the execution of the power.. The court did not pretend by a reference to ascertain the wishes of the testator, whether he meant this or that male descendant, but by means of a reference attempted to ascertain the names of the persons who belonged too well-defined class named by the testator, and this was all. There being no designated beneficiaries of the power in trust capable of compelling its enforcements, the trust—the word “trust” is used advisedly—seems to be void. The judgment appealed from should be affirmed, with costs to the respondents and to the appellant executors and the guardian ad litem to be paid out of the estate.

Daniels, J I concur in the result.

1 3 Rev. St. N. Y. (7th Ed.) p. 3191.