Reid v. Sprague

LeaRNEd, P. J.

(dissenting) :

The will of Jane Chamberlain, although inartificial, is sufficient to create a trust estate in Catharine Barber, to receive the rents and profits of the real estate, and to apply them to the use of Helen Reid, during the life of Helen; with remainder in fee to Catha-.rine. (1 R. S. [m. p.], 728, § 55.) The trust estate is only for the life of Helen. (1 R. S., 730, § 86.) It is inalienable. (1 R. S. [m. p.], 730, §§ 82 and 84; Cruger v. Jones, 18 Barb., 467; Tucker v. Tucker, 5 N. Y., 416.)

Catharine, then, could sell the remainder, but had no power to sell the life estate held in trust for the life of Helen; unless, indeed such power was expressly given by the will.

The only part of the will which is claimed, as I understand, to confer this power, is the concluding clause, in these words: “ I direct my trustee to convey my real estate according to the above devise.” Now the testatrix had previously in her will devised all land “ which is held in trust for me,” to Catharine Barber, for the purpose above specified. It seems to me, therefore, that this concluding clause was intended to direct the trustee of the testatrix to convey the land which was held in trust for her to her devisee, according to the above devise, and that it has no application to Catharine Barber’s powers as trustee.

For several reasons: 1. Catharine Barber was not the trustee of the testatrix, blit of Helen Reid. 2. The testatrix had not previously spoken of Catharine Barber as a trustee. 3. The clause is directory, not permissive, and could not be intended to give a mere power to sell, or not, at a trustee’s discretion. 4. If Catharine Barber was the trustee referred to in this clause, it was meaningless to direct her to “ convey according to the above devise.” She was not to convey the property, but to hold it for the support of Helen, as had been previously stated. 5. The conveyance directed was of “ my real estate.” After the devise had taken effect and the land was held by Catharine Barber, on the trust, it would not be the real estate of the. testatrix. While on the other construction, the language used would be appropriate to direct some person holding land in trust for the testatrix to make a conveyance thereof according to the terms of her will. 6. If it had been intended to give a trustee power to sell trust estate, there would be no meaning in the words “ according to the above devise such a salé would not be according to the devise. 7. The trustee referred to is not authorized to sell, but directed to convey. And the language does not imply any compensation to be received by the trustee.

For these reasons the only meaning which I give to that clause is that the testatrix had, or thought she had, some real estate held in trust for her; that she desired such real estate to go according to her previous devise, and that she deemed it best to direct her trustee to convey it accordingly. So far as the construction of the will is to be derived from the meaning of testatrix, it is immaterial whether she had, or only thought she had, land held in trust for her.

With this view of the will, I think that Catharine Barber had no power to convey to Johnson the trust- estate, free from the trust imposed. (1 R. S. [m. p.], 730, § 84.) Her conveyance may have been valid to transfer to him the remainder, after the trust life estate.

The statute absolutely protects the cestui que trust. She cannot be deprived of her right to the rents and profits. She is not bound to accept, and indeed has no power to accept, the bond and mortgage as a substitute for the land. To hold that she has any interest in the bond and mortgage, is practically to hold that she has lost her right to the rents and profits of the land ; a right declared by statute to be absolutely inalienable. (1 R. S., 730, § 30.) I think that the cestui que trust is still entitled to those rents and profits wherever the title to the land may be.

For these reasons I think that the judgment should be reversed.

Judgment affirmed with costs.