Carpenter v. Cook

HENSHAW,J. —This action was prosecuted by plaintiffs to quiet, against defendants, their title to certain real estate, plaintiffs claiming the legal title to the estate as trustees, —1. Under a deed of trust executed by one Amasa P. Willey in his lifetime; and 2. As trustees under the will of said Willey, by the terms of which he devised to them the property in question, upon the trusts declared in a deed of trust exected by him in his lifetime. By its judgment the court decreed, — 1. That the trusts created by the deed of trust were void, and that consequently, under this instrument, the trustees had no title; 2. That whether or not they had title by virtue of the will was a question to be resolved in the first instance by the court in which administration of the estate of Willey was pending. From the judgment thus rendered against them plaintiffs appeal. Upon this appeal we are concerned solely with the question of the validity or the invalidity of the trusts declared by the deed. Of those trusts, one was to operate during the lifetime of the settlor; the others were to operate upon and after the death of the settlor, upon the “residue ” of the trust property remaining at his death. As has been said, by his will the tes *623 tator conveyed his property to these same trustees, upon the trusts declared in his deed of trust. The first of those trusts having terminated by his death, the trusts which could be operative under the will necessarily are only those designed to follow thereafter. Whether or not these trusts, even though the deed of trust be void, may still be effective by virtue of their re-enactment in the will, is a question, in the first instance, to be determined by the court in probate (see Estate of Willey, 128 Cal. 1), and therefore not the subject of consideration here. We deem it important to say this in emphasis of the fact that upon this appeal the court is dealing only with the question of the validity of the trust scheme created by Willey’s deed. In his lifetime, Willey conveyed all the real estate which he owned or possessed, to these plaintiffs, as trustees, in trust, “for the uses and purposes following; that is to say: — “ First. During the lifetime of the said party of the first part, to hold the same, and all the rents, income, profits, and proceeds thereof, and all property received in exchange therefor, to the sole use and behoof of the said party of the first part; and, whenever directed by the party of the first part, to bargain, sell, convey, assign, transfer, and deliver said property, or any part thereof, to such person or persons as the said party of the first part shall direct, and to hold the proceeds of any such sale, or any property received in exchange therefor, to the sole use and behoof of the said party of the first part; “ Second. Upon and after the death of the said party of the first part, to have, hold, and possess all and singular the residue and remainder of said property and effects, to lease and demise the same, and to receive the rents, income, and profits thereof.” Following this is an elaborate trust scheme, unnecessary here to be set out. Manifestly, the trust declared in the first clause of the deed is a trust designed to continue through the life, and to terminate upon the death, of the settlor. It must be an express trust permitted by section 857 of the Civil Code, or it is void. That section is divided into four subdivisions. Subdivision 2 permits a trust in real property to mortgage or lease it for the benefit of annuitants or other legatees, or for the purpose of settling any charge thereon. Clearly, the trust here created is not referable to this subdivision. Subdivision 4 permits a trust to receive the rents and profits of real property, and to accumu *624 late the same for the purposes and within the limits prescribed in title II of the code. This has to do with accumulations during minorities of beneficiaries, and of course the trust in question does not belong to this class. Subdivision 1 permits a trust to sell real property and apply or dispose of the proceeds in accordance with the instrument creating the trust. In such a trust the essential elements are: 1. An imperative duty upon the trustee to sell,—which means a disposition of the property for money; and 2. An equally imperative duty to apply or dispose of the proceeds in accordance with the instrument creating the trust. To apply or dispose of the proceeds is a plain direction and command that the trustee must part with the moneys obtained by the sale. Subdivision 3 permits a trust “ to receive the rents and profits of real property, and pay them to or apply them to the use of” a specified person. Here, too, it is of the essence of the trust that there shall be imposed upon the trustee the active duty of applying, distributing, and apportioning the rents and profits in accordance with the directions of the trust. The trust here created is not a trust referable to any one or more of these specified classes. It is a trust, primarily, “ to hold” the property, and its rents and income, “to the sole use and behoof of the settlor.” A trust to hold property is not a trust to sell and dispose of the proceeds. A trust to hold rents and profits to the sole use and behoof of a person is not a trust to receive rents and profits, and pay them or apply them to the use of any person. It is a mere passive trust. It is a trust not specified by section 857 of the Civil Code, and is therefore void. (Jarvis v. Babcock, 5 Barb. 139; Verdin v. Slocum, 71 N. Y. 347; Hagerty v. Hagerty, 9 Hun, 175.) It cannot be successfully argued that this is a trust under subdivision 3 of section 857. The language of the trust is, to hold the rents, income, and profits of the property, to the sole use and behoof of the party of the first part; not to pay or apply them to his use. The trustees are to do with them as the settlor may direct, and he might direct them to hold and accumulate them in an unlawful manner and to an unlawful extent. It is equally impossible to find in this language a valid trust, under subdivision 1 of section 857, — first, because, as has been said, it is essential to such a trust that the duty upon the trustees to sell should be imperative. (Cooke v. Platt, 98 N. Y. 35; Morffew v. San Francisco etc. R. R. Co., 107 Cal. 587, *625 595.) Here no such duty is imposed. The trustee is not to sell at all, either all or any part of the property, unless directed by the settlor, and then he is not alone to sell to such person or persons as the settlor may direct, but he may exchange property for other property, as clearly appears from the language, “to hold the proceeds of any such sale, or any property received in exchange therefor, to the sole use and behoof of the party of the first part.” We think it too plainly apparent to need further exposition, that the trust or trusts attempted to be created in the first clause of this deed are one and all wholly without the purview of section 857 of the Civil Code; and we pass to the consideration of the effect of the invalidity of this life trust upon the trusts to commence upon the death of the settlor. It is a familiar principle, that if several trusts- are so inextricably interwoven, so mutually interdependent, that the destruction of one mutilates and maims in essential particulars the trust scheme, the whole must fall. In this case, the dependence of all succeeding trusts under this deed results—if it results at all—from the language above quoted from the second paragraph: “ Upon and after the death of the said party of the first part, to have, hold, and possess all and singular the residue and remainder of said property,” for certain specified uses and trusts. Here it is apparent that it is only the residue—a legal phrase of well-defined meaning—which, after the settlor’s death, is to be devoted to the purposes of the succeeding trusts. In Limbray v. Burr, 6 Madd. 151, the rule-applicable to this case is laid down in the following language: “Where a residue is given to a valid purpose, it will fall with the prior void purpose, if not capable of being ascertained except by the actual execution of that purpose ”; and as Jarman expresses it (2 Jarman on Wills, 6th ed., p. 236): “A gift of the residue, after providing for an illegal object, is void.” In Cowen v. Rinaldo, 82 Hun, 479, 31 N. Y. Supp. 555, will be found a learned discussion of the question here-arising, and the court concludes: “ But we have failed to find any casein which the primary trust has been held to be invalid, and the ulterior trusts or dispositions of the will have been held to be good. . . . The primary objects may still remain, and those that follow may be cut off. But if you cut off the primary object, upon what do the ulterior provisions depend?” In instance of the rule that when *626 the primary trust has been adjudged void, the trusts and limitations over have uniformly fallen, may be cited Rice v. Barrett, 102 N. Y. 161; Beekman v. Bonsor, 23 N. Y. 298; 1 Dodge v. Pond, 23 N. Y. 69; Hone v. Van Schaick, 20 Wend. 564; Smith v. Edwards, 88 N. Y. 92; Fowler v. Ingersoll, 127 N. Y. 472. It follows, therefore (and this language has exclusive application to the trust scheme created and attempted to be set in operation by the deed of trust alone), that the trial court correctly decided that no title vested in the trustees by virtue of the deed of trust, and the judgment appealed from is therefore affirmed. Van Dyke, J., Harrison, J., Garoutte, J., Temple, J., and Beatty, C. J., concurred. Footnotes [1] 80 Am. Dec. 269.