Campbell v. Low

Basculo, J.

Among the trusts in this peculiar and complicated deed I find the following: “ And upon this further trust, that he the said Robert S. Gordon jun., his heirs, executors, and administrators, shall and may in his and their discretion, control, manage, sell, dispose of, vest and reinvest the said real and personal estate, and the income thereof, as shall be deemed most advantageous, rendering to the said Mary M. Jennings so much thereof of principal or income-as may be necessary and proper for the maintenance and support of herself and family, and that her sole and separate receipt therefor shall be a sufficient acquittance.” This clause confers upon the trustee certain powers and duties which take the trust out of that class of passive or formal trusts abolished by the revised statutes, and bring it within the cases of Mason v. Jones, (2 Barb. S. C. Rep. 229,) and Gott v. Cook, (7 Paige, 521.) The trustee may control, manage, sell and dispose of the estate and the income thereof, “ and pay over the same for her support and maintenance.” It is therefore sub•stantially a trust to receive the rents and profits and apply the same to her use, within the terms of the statute. I think, therefore, that the trust deed was valid in its inception.

But there is another question, which was not raised nor considered at the special term. It is whether the execution of the mortgage by Mrs. Jennings was not a good execution of the power given her by the deed? Upon a careful examination of this instrument I have arrived at the conclusion that the cestui que trust is given full power of disposition of the estate after the death of her husband, and the same power during his life, with his assent; and that the mortgage, having been executed by both of them, conveyed the estate. The judgment below should therefore be reversed without costs.