In Re the Accounting of United States Trust Co.

Cullen, J. The question presented by this appeal is whether a conveyance by a remainderman to the party, who is claimed to be the equitable life tenant of a trust fund, operated, under the provisions of the Real and Personal Property Laws, to terminate the trust as to the share so conveyed and to entitle the life tenant to the corpus of such share. Helena Rogers, who died May, 1896, by her will gave her residuary estate of both realty and personalty to the United States Trust Company in substance upon the following trust: To pay to her son, Hoffman Rogers, during his natural life, so much of the income as'might be necessary for his support and maintenance, and the surplus of such income to the guardian of the children of said "son during their minority and to the children personally after attaining age. After the death of her said son, and as her grandchildren severally became of age, she gave each of said grandchildren an equal share of said trust estate, with the provision that in the case of the death of any grandchild before reaching the age of twenty-one years, leaving issue, the issue should take their parents’ share, but in case of death without issue the share should go to the surviving grandchildren. The testator’s son, Hoffman Rogers, has three children, all now of full age. March 27th, 1902, John F. Rogers, one of said *308 grandchildren, conveyed his interest in the estate of the testator to his father, Hoffman Rogers. Thereupon said Hoffman Rogers released to himself his income in the share of the estate so conveyed to him, and then conveyed back to .John F. Rogers the said share. Thereafter, John F. Rogers instituted these proceedings in the Surrogate's Court for a judicial settlement of the trustee’s account and to compel the payment to him of one-third of the corpus of the estate. The accounting was referred in the first instance to a referee, who reported that the trust had not terminated as to the share conveyed by John F. Rogers to his father and then received back from him. The surrogate held to the contrary and decreed payment of the share to the petitioner. The Appellate Division . of the first department reversed the decree of the surrogate and affirmed the decision of the referee. While we think the Appellate Division properly disposed of the case we cannot concur with it in the view that the surrogate had no power to entertain the application. It is doubtless true that a surrogate has no general equitable jurisdiction and, for the matter of that, no general legal jurisdiction. But in so far as it is necessary to discharge the duties and functions conferred upon him by statute and to make proper orders and decrees in matters of which he has jurisdiction, he has all powers, legal or equitable, necessary to accomplish that result. This was the ground on which Matter of Verplanck (91 N. Y. 439) proceeded. By sections 2802 et seq. jurisdiction over testamentary trustees is conferred on surrogates. By section 2812 the surrogate is empowered to determine any controversy arising on the settlement of the account of a trustee concerning the right of any party to share in the money or other personal property to be distributed. Since the enactment of the statute of 1893 (Chap. 452) and the Real and Personal Property Laws (Chap. 547, Laws of 1896, and chap. 417, Laws of 1897) certain trusts are made terminable on compliance with specified requirements of the statutes. When the necessary conveyances or releases are executed it requires no action of a court of equity to abrogate the trust, but the *309 trust terminates as a matter of law. If the case falls within the statute the surrogate must decree a proper distribution of the estate exactly the same as if the trust had terminated under the provisions of the will, and if the claim that the trust has ceased is challenged he must decide that issue in one cáse just as in the other. The contention that the surrogate cannot look beyond the will to the subsequent acts of the parties in interest is in direct opposition to the adjudged cases. It ivas made in Matter of Wagner (119 N. Y. 28), where it was contended that the surrogate must require an executor to file an inventory and render an account on the demand of a party in interest under the will, although that party had executed a release to the executor. It was argued that the surrogate could take no cognizance of the release. This court held, to the contrary, that the release was a bar to the application for an accounting. It must be borne in mind that there is no attempt made here to impeach or set aside the conveyances. The Surrogate’s Court would have no jurisdiction over such issues and to get that relief it would be necessary to resort to a court of equity. The sole question here is, their validity being conceded, what, under the statute, is their effect on the trust. In Sanders v. Soutter (126 N. Y. 193) the right to maintain an action in equity for an accounting was sustained because the parties had executed releases which they claimed were obtained by fraud, and it was held, not that the surrogate could ignore those releases, but that he must recognize them and that they would be conclusive against the parties in the Surrogate’s Court until set aside by a court of equity. The whole subject is fully reviewed in Matter of Randall (152 N. Y. 508). Some of the beneficiaries had made assignments of their interests. It was held that the surrogate could not ignore them but must give effect to them and relief from their effect could be had only in a court of equity. In this' case the sole question before the surrogate was the effect of the conveyances. On the merits we are in accord with the Appellate Division and the referee. It is unnecessary to discuss the provisions of *310 the statute of 1893, as the parties never sought to avail themselves of the provisions of the statute while it was in force. There was no privilege in the equitable life tenant to terminate the trust, except upon his acquisition of title to the remainder after the trust term. This was in no sense a vested property right. The only property right the life tenant had was the right to receive the income. The repeal of the statute in no way affected this right, nor has it in any way affected the rights of the remaindermen whose property then, as now, is subject to alienation. We think the case does not fall within the provisions of the Real and Personal Property Acts. Those statutes provide: “ Whenever a beneficiary in a trust for the receipt of income of personal property is entitled to a remainder of the whole or a part of the principal fund so held in trust, subject to his beneficial estate for life or lives, or a shorter term, he may release his interest in such income, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.” Hoffman Rogers, under the will, was not entitled to the whole or any definite part of the income, but only to such part as might be necessary for his support. Such amount would naturally vary from time to time, dependent on the requirements of the beneficiary and the productiveness of the fund. Nor did the conveyance from his son help the matter. In the discussion of this subject we entirely agree with the learned referee. A further and conclusive answer to the claim of the ajipellant that the trust terminated is, as we construe the will, that the remainders are liable to open and let in the afterborn children of Hoffman Rogers. It is stated by Mr. Schouler (Wills, sec. 530): “Hence the English rule, confirmed by many American precedents, that the devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the testator’s death, but so as to onen and let in children who may come into existence afterwards at any time before the fund is distributable.” Mr. *311 Jarman states the rule to be (2 Wills, 168): “ Where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or the children of any other person, such gift will embrace not oidy the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution.” (See Byrnes v. Stilwell, 103 N. Y. 453; Matter of Brown, 154 N. Y. 313.) There is nothing in this will to take the case without the general rule. If it be assumed that the provision of the will that the share of any grandchild dying before he reaches the age of twenty-one years without issue, shall go to the surviving grandchildren, involves an illegal suspension as to the share of any grandchild born after the death of the testator, that direction is plainly severable from the other provisions of the will and does not affect their validity. Whatever may be in other respects the true construction of the Beal and' Personal Property Laws providing for the termination of trusts, plainly they do not authorize the destruction of the property rights of persons who may thereafter come into being. For a life beneficiary of a trust fund to fall within the terms of this statute as “ entitled to remainder of the whole or part of the principal fund so held in trust,” his title to such remainder must be absolute and indefeasible, not subject to be divested or to diminution on the occurrence of subsequent contingencies. The order appealed from should be affirmed, with costs.