Metcalfe v. . Union Trust Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 41 The judgment rendered in the action brought for the construction of the will has settled, as the law of the case, that the trust created for the testator's widow was valid for her life, or until her remarriage, and the only question for our consideration is whether that trust had ceased, as the result of the assignment by the remaindermen of their right to the remainder and of the release by the widow of the interest in the income. When the trust was created, in 1892, section 63 of the Statute of Uses and Trusts was in force, (1 R.S. 730), applicable alike to real and personal property; which prevented the beneficiary of such a trust from assigning, or disposing of, his interest. Subsequently, in 1893, (Laws of 1893, chap. 452), that section of the Revised Statutes was amended, so as to permit a "person beneficially interested in the whole or any part of the income of any trust heretofore or hereafter created for the receipt of the rents and profits of lands or the income of personal property," who "shall have heretofore become or may hereafter be or become entitled" to the remainder in a trust fund, to release to himself all his interest in the income of the trust estate and, thereafter, the estate of the trustee was to cease and determine. In 1897, (Chap. 417, Laws of 1897), the Personal Property Law was enacted; section 3 of which *Page 43 repealed previous statutes upon the subject and read that "The right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, cannot be transferred by assignment or otherwise; but the right and interest of the beneficiary of any other trust in personal property may be transferred. Whenever a beneficiary in a trust for the receipt of the income of personal property is entitled to a remainder in the whole or a part of the principal fund so held in trust, subject to his beneficial estate for a 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." It is upon this enactment that the appellant rests her right to have the trust declared terminated. It is interesting to note, and I agree with Mr. Justice PATTERSON of the Appellate Division in his expression of satisfaction, that the legislature, by chapter 88 of the Laws of 1903, has restored the state of the law to its earlier condition under the Revised Statutes; whereby the interest of a beneficiary in such a trust is rendered inalienable. The Appellate Division has denied the right of the plaintiff to a decree, declaring that the trust had terminated, upon two grounds. It was held, in the first place, that as "the legal estate in the trust fund is in the trustee, it thereby became property in his hands," of which the legislature could not, constitutionally, deprive him without his consent, and, in the second place, that, as the widow's interest was for her life, or until she remarries, it was not an absolute estate, but was conditional in its nature and, hence, not within the purview of the statute. I am not disposed to take the view of the unconstitutionality of the act of 1893, although forcibly presented in the opinion of the very learned justice, who spoke for the court below. It impairs no contract. (Cochran v. Van Surlay, 20 *Page 44 Wend. 365.) Although the legal estate is in the trustee, he but possesses a naked right, which is to be exercised, not for his own benefit, but for that of another. His estate is commensurate with the trust duties imposed upon him and it ceases when they are performed, or when they are at an end. The whole beneficial proprietorship, or interest, is in the cestui que trust, for whom he holds the estate and who has the right to enforce the performance of the trust. At common law, when the latter had the equitable fee, he could call for the conveyance of the estate by the trustee and extinguish the trust. (Lewin's Trusts, *486.) At common law, and under our Revised Statutes, the trustee's tenure has been under the supervisory power of courts of chancery, or of equity, and it was dependent upon conditions having no relation to any interest of his in the estate. If he has a right to commissions, it was given to him by statute, only. The argument that the constitutional guaranty against the deprivation of one's property, without due process of law, has its application to the case of this trustee is, in my opinion, unsound. That guaranty exists for the protection of the citizen's property against arbitrary legislation, and every arbitrary proceeding, which does, or may, affect it. But what is there about the right, or estate, of a trustee, which involves the idea of "property," as that term is commonly understood and as it was undoubtedly employed by the framers of our Federal and State constitutions? To the ordinary mind, and that is one of the best tests in interpreting statutes, the term "property" suggests some unrestricted, or exclusive, right to that which has been created, or acquired. It is an inherent right to the dominion over, and the beneficial enjoyment of, some valuable right, or interest. How can that be predicated of the estate of a trustee? He exercises certain powers for the sole benefit of the cestui quetrust. He has no beneficial interest and he can be removed whenever, in the judgment of a court of equity and by the exercise of its inherent power, it becomes necessary, and independently of the instrument of his appointment. (Perry on Trusts, 276.) His right, or interest, lacks those elements *Page 45 of ownership, which are associated in our minds with the idea of property. In my opinion, if the conditions of the statute are met by the facts of the case, there is no constitutional difficulty in adjudging the termination of the trust. When, however, we come to the construction of the statute of 1897, I think we shall find it difficult to make it operative upon the testamentary trust in question; a difficulty which, as I shall endeavor to point out, is to be further met with, when we consider the testamentary plan, in connection with the conditional nature of the estate created for the widow. The intention of a testator, when clear and not contravening any statute, or rule of law, must be implicitly obeyed. If it cannot be wholly effectuated, as was the case here, because the children's trust did contravene the statute, nevertheless, if the intention, apparent from the provision made for the widow and from the general design of the will, was such as to presuppose a purely conditional and, therefore, an inalienable estate in the widow, the statute should not be allowed operation. But, passing to a consideration of the statute, it is to be noticed that, while the act of 1893 was in force, no action was taken to terminate the trust; perhaps, because of the minority of the children. By its language, that act was made expressly applicable to "any trust heretofore, or hereafter created;" but when the legislature came to enact the Real Property Law of 1896 and the Personal Property Law of 1897, superseding prior legislation, in each enactment, it omitted those words. The omission is quite significant and should be borne in mind, when considering whether the act should be given a retroactive effect. The general rule is that every law operates prospectively and will not be given a retroactive effect; unless a contrary intent appears, in express terms, or by clear implication. Doubtless, where no constitutional security is invaded, the legislature can make its enactments retroactive and it had the power to do by the act of 1897 what it had done by that of 1893; but not having done so, we should, rather, conclude that the omission in the later act of the words "any trust heretofore or hereafter created" *Page 46 was intentional and a change of the legislative mind upon the subject of the alienability of a beneficiary's interest. I concede the force of the argument that the words "whenever a beneficiary * * * is entitled to a remainder" etc., used in the act of 1897, may possess a retroactive meaning; but they are not strong enough, under the circumstances of their introduction, and I prefer, rather, to infer that the legislature intended to make the statute prospective and, when so radically changing a long existing law, did not deem it wise to alter the conditions under which a testator had made a disposition of his estate. Passing, then, from the consideration of the statute to that of the will before us, we perceive, and very plainly so, that it was drawn by some hand unskilled in the law; but, as it has been said of a will ignorantly drawn, "if the court can pick out the meaning, that ought to take place." (Upwell v. Halsey, 1 P. Wms. 651, cited in Wright v. Miller, 8 N.Y. 26.) The testator meant that his residuary estate should be held upon two trusts; namely, one-third thereof for his wife and two-thirds for his son and three daughters. He plainly expressed himself as intending that his widow's interest in his estate should be restricted to the enjoyment of the income of one-third during her life, or until she remarried, and, under his testamentary plan, it could never have been other than of that conditional nature. The portion of the son might become his, absolutely, upon attaining his majority; but the portions of the three daughters were to be held, at all times, in trust for their lives. "In case of the remarriage, or the death," of his widow, he provides that the interest of her one-third was "to be used to increase the investments made for his children;" that is to say, it was to be added to the trust fund in the trustee's hands. It is true that the trust for the children has been adjudged to be invalid and that they were, consequently, in a position to assign their remainders; but that was not within the contemplation of the testator. When he made his will, and when it became effective by his death, the statutes of the state made the interest of the beneficiary of such a trust *Page 47 inalienable. Whatever may have been his actual knowledge, he will be presumed to have known of the existence of a statute of the state, which made the beneficiary's interest inalienable and, thus, afforded protection to a provision, which, in theory of law, is presumed to be made for the helpless, the unfortunate, or the improvident. What this testator's idea was, we do not know, except from the will, and it may well be that this is not a case where the protection of the statute becomes important; but that is not a controlling consideration. If the scheme of the statute was such, that, if valid, the widow's interest in his estate would have been always conditional upon her remaining unmarried, it evidenced an intention, which the statute should not be permitted to override. It seems to me that every consideration, suggested by the language of this will, comes in aid of a construction, which would effectuate the testator's intention that his wife's enjoyment of an interest in his estate should be conditional and not possible of alienation. For these reasons I advise the affirmance of the judgment, with costs to the plaintiff and to the respondent payable out of the fund.