ÆäÀÌÁö À̹ÌÁö
PDF
ePub

App. Div.]

First Department, October, 1909.

1830, chap. 320, § 10.) Under section 60 of that statute (1 R. S. 729) every express trust, valid as such in its creation, except as therein otherwise provided, "shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the trust is created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity." Section 63 (1 R. S. 730) provides that "No person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest." The trustees became vested with title to the property transferred, and the interest in the trust property of those for whose benefit the trust was created was the right to enforce the performance of the trust in equity. At the time of the creation of this trust Anna Benkard, the grantor, was unmarried, and in default of the exercise by her of the power of appointment her heirs at law at the time of her death would become absolutely entitled to the remainder. The reservation of the power of appointment did not at all affect the trust, or vest in the grantor a beneficial interest in the remainder. Her interest as a beneficiary under the trust was entirely distinct from the right that she reserved to exercise this power. She parted with all title to the property which vested in the trustees. She had a right to enforce the performance of the trust in equity. She also reserved to herself a power of appointment of the remainder by a last will and testament, the two being entirely distinct; the right to appoint being one which could only become effective after her death and would necessarily depend upon her leaving a last will and testament by which only could the power be exercised. Upon the failure to exercise such power the estate would vest absolutely in those who would be her heirs at law at the time of her death so that the remainder would necessarily be contingent. Thus, if the grantor of the power should have children who should die before her, those children would never have any interest in the property, as they could never become the heirs at law of the grantor. The provisions of this original trust instrument, however, were seriously modified by the agreement of the 18th of November, 1879, and the judgment of the Supreme Court entered on the 26th of November, 1879, ratifying and confirming that agreement. On the 17th of November, 1879, an indenture was

First Department, October, 1909.

[Vol. 134. executed between Charles G. Landon, a trustee under the deed of trust of July 31, 1872, and Alonzo C. Monson and William Jay, which recited the instrument creating the trust; the resignation of two of the trustees; that the party of the first part was the remaining trustee and contemplated resigning his trusteeship and for that purpose had commenced an action in the Supreme Court to have the accounts passed, and that he be discharged from said trust; that Anna B. Hunt had consented that the resignation of all three trustees should be accepted and requested that Alonzo C. Monson and William Jay, the parties of the second part, should be appointed as the successors of the said trustees. The indenture witnesses that the party of the first part, the remaining trustee, nominated, constituted and appointed the said Monson and Jay, parties of the second part, to be trustees under the deed of trust of the 31st of July, 1872, and that for the purpose of vesting said Monson and Jay with all the said estate, real and personal, the said party of the first part did grant, bargain, alien, release, transfer and set over to Monson and Jay, their successors and assigns, all the trust estate, real and personal, then held under the provisions and trusts of said indenture, subject to the trust contained in and created by the said indenture or deed of trust. It was further recited that on the 18th day of November, 1879, an indenture had been executed between Anna B. Hunt, the original creator of the trust, and Monson and Jay, which recited the trust deed of the 31st of July, 1872, the resignation of the three trustees provided for in said trust deed, and the appointment of Monson and Jay as trustees under the said trust deed; that the original trustees had exercised the discretion in them vested in and by the said trust deed by advancing to the said Anna B. Hunt the sum of $50,000 out of the principal of the estate on condition that she should upon receiving the same exercise the power of appointment by her reserved in the said trust deed, and designate and appoint by deed under seal the persons to whom said estate was to be paid over, distributed and divided at her death; that the said Anna B. Hunt had determined so to exercise her said power of appointment to her reserved and to dispose of the estate held in trust as thereinafter set forth. The indenture then witnessed that in consideration of the premises and the sum of $50,000, paid to her

App. Div.]

First Department, October, 1909.

by the said trustees, the said Anna B. Hunt did, by virtue of the power to her reserved in and by the said deed of trust, designate and appoint that the estate remaining in the hands of the trustees at the death of the said Anna B. Hunt should be paid over, divided and disposed of by paying the rents, incomes and profits thereof to her husband during his life, and upon his death to assign, transfer, convey and set over the said trust estate unto such of her children as should then be living, and to the issue of such of them as should have died, in equal shares per stirpes and not per capita absolutely and forever; the said Anna B. Hùnt, however, reserved to herself the right to vary the disposition made of the said trust estate by her last will and testament, or by an instrument in the nature thereof thereafter to be executed by her, by directing that a certain part of such annual income should be paid to her children during the lifetime of her said husband if she should so desire, and also by directing and appointing that the said estate upon her husband's death should be assigned, transferred, conveyed and set over unto one or more of her children or to their issue, to the exclusion of other of her children and their issue, or that such estate be assigned, transferred, conveyed and set over unto said children and to their issue in such unequal shares as she might desire and as she might thereafter determine; that in the event of there being no child or children of hers, nor issue of a child or children, at the time of the death of the said Anna B. Hunt, then she reserved to herself the absolute right of disposing of the said estate by her last will and testament, or an instrument in the nature thereof, to any person or persons whomsoever as she might desire.

Subsequent to the execution of these two instruments judgment was entered in the action commenced by the remaining trustee and to which the said Anna B. Hunt, her husband and all of her children, except the defendant Rupert Herbert Hunt, who was then unborn, were parties. That judgment recited the conveyance by the plaintiff to the substituted trustees, the indenture by which the defendant Anna B. Hunt had received the sum of $50,000 on condition that she should exercise the power to her reserved of appointing by her last will and testament or otherwise the manner in which the remainder of the said trust estate should be vested and divided at her death; that the said Anna B. Hunt, in consideration of such

First Department, October, 1909.

[Vol. 134. payment, had so exercised the power and had, by an instrument duly executed under her hand and seal, duly appointed the manner in which said trust estate should be vested and distributed at her death. It was ordered, adjudged, decreed and declared that the power of the defendant Anna B. Hunt reserved by the said trust. deed of appointing and directing the manner in which said trust estate should be paid over and divided at her death had been duly and effectually exercised and exhausted by her execution of a certain indenture of deed under her hand and seal dated the 18th day of November, 1879, whereby she appointed and directed in substance that the two trustees or their successors should hold the said trust estate during the lifetime of her husband, the defendant Percy Hunt, if he should survive her, and should pay him the income thereof, or such part of said income as she might by her last will direct to be paid to him, and upon his death or her death, as the case might be, that they should divide the principal of said estate equally among her children, and the issue of such of them as should have died before that time per stirpes, or to pay over and divide the principal of said estate to and among her children and their issue in such shares and proportions as she might by her will direct, all of which, by reference to said original deed or to the record thereof, when the same should have been recorded, should more fully and at large appear; and it was further ordered, adjudged and decreed that the said appointment and disposition of the said estate so made as aforesaid was ratified and confirmed, and it was thereby declared that the power to appoint and dispose of the said estate had been exercised and exhausted, and that such appointment and disposition were effectual, final and irrevocable.

The effect of this instrument, ratified and confirmed by the judgment, was to limit the power of appointment reserved by Anna B. Hunt, so that it thereafter could only be exercised according to the terms of the instrument judicially declared to be effectual and irrevocable. It bound all the parties to that action, including Anna B. Hunt, in whom the power to dispose of the remainder of the property had theretofore existed. It still reserved, however, to Anna B. Hunt the right by a last will and testament, or instrument in the nature of a last will and testament, to distribute the remainder

App. Div.]

First Department, October, 1909.

among her children as she wished, either in unequal proportions or by excluding one or more of her children and appointing one or more of them to receive the entire trust estate upon her death. It was adjudicated that a valid trust existed; that the legal title of the corpus of the trust was in the trustees and that the right of the beneficiaries was restricted to an enforcement of the trust in equity. The trust existing and the trustees holding the title to and possession of the property in July, 1898, the indenture upon which this action is based was executed. The defendant Anna B. Hunt and her children were therein described as residents of Paris, France. She and her children who were of age united in what was called a mortgage to secure the sum of £9,200. This instrument recited the trust indenture of July, 1872, and also the indenture of the 18th of November, 1879. It also recited that the said Anna B. Hunt had reserved a power to vary such disposition by her will by appointing such trust estate to her children in unequal shares, or to one or more children or their issue to the exclusion of the others. It then provided that the mortgagors jointly and severally covenanted to pay to the mortgagee the sum of £9,200 with interest thereon; that the mortgagors as to the share to which she or he was or should become entitled under the said indenture of the 31st of July, 1872, and the 18th day of November, 1879, or in any other manner whatsoever and as beneficial owner, did grant, appoint, bargain, sell, assign, transfer and set over unto the mortgagee all the real and personal estate and all other the trust estate comprised in or then subject to the trusts of the said indenture of the 31st of July, 1872, and the 18th day of November, 1879, or either of them, to hold unto and to the use of the mortgagee, subject to the proviso for redemption thereinafter contained. It was further provided that the said Anna B. Hunt, at the request and with the concurrence of the said Frederick Percy Hunt, Lilian Catherine Hunt and Reginald Sidney Hunt, released unto the said Frederick Percy Hunt, Lilian Catherine Hunt and Reginald Sidney Hunt and all other persons interested in the said trust estate the power of appointment in unequal shares or to one or more child or children to the exclusion of the others, to the end and intent that the said trust estate shall vest absolutely, subject to the life interest of the said Anna B. Hunt, in the said Frederick Percy Hunt, Lilian Catherine Hunt,

« ÀÌÀü°è¼Ó »