Linsly v. Bogert ( 1895 )

VAN BRUNT, P. J.

We might very well rest our decision in affirming the judgment appealed from upon the exceedingly satisfactory opinion written by the learned referee upon the decision of the question involved before him. It may be well, however, to revert to one or two points in addition to those which have been considered by the referee. If the tenant for life, as matter of right, is entitled, as is claimed by the appellant, to the increase resulting from the rise in price of the securities in which the trust fund was invested, then it would seem to be a right existing in the life tenant, at any time when such premiums existed, to compel a sale of the security in which such trust fund was invested, in order that she might realize such increase. It is apparent that no such right exists in the life tenant. Such a power would enable the life tenant to compel the trustees to speculate in securities, and change investment at her pleasure, and thus deprive the trustees of the ordinary powers which are supposed to be invested in them. It has been well observed by the referee in his opinion that, even if, by the terms of the will, the life tenant was entitled to the increase realized on the principal of the fund, it could not accrue to her or her estate until the expiration of her life tenancy, as before that time it would be manifestly impossible to ascertain the amount of such increase, or even the existence of any. The present transactions may show a gain, but the next investment may be unfortunate, and involve a loss. It is manifest that it was not the intention of the testator that all gains, when realized, should belong immediately, to the life tenant, and that all losses should be charged to the corpus of the fund. It is apparent that the testator intended the provisions of the will under consideration for the benefit of a tenant for life, to be enjoyed during such life, and not for the benefit of the personal representatives of a person who has been a tenant, but whose term must be ended by death, before the question of whether there is an increase or not can be determined. We think, therefore, that the judgment appealed from should be affirmed, with costs. All concur.