Matter of Petition of Waring

Ruger, Ch. J. The petitioner, Edmund Waring, being, previous to November 8, 1876, the owner of a large amount of real and personal property, on that day conveyed to William E. Waring his real estate by a deed without covenants, upon the consideration expressed in the conveyance of $10, and out of natural love and affection. At about the same time presumably the petitioner delivered the personal property in question to said William E., and the same, with said real estate, remained in the possession of the said William E., and he continued to manage and control it, until his death on the 5th day of October, 1882. . By his last will and testament William E. Waring devised all of his real and personal estate to the appellant, Frederika Waring, and under said will she has taken possession of and now holds the property above described. It seems also inferable from the proof, that simultaneously with the transfer of the property in question William E. Waring and Edmund Waring executed two several agreements, in writing, indicating that the property in question was not conveyed solely for the purpose of vesting the ownership in the said William E. Waring, but was so conveyed to enable its grantee and assignee to carry out and execute certain purposes designed by its former owner, and which were expressed more or less fully in said agreement^. Subsequently thereto, and on the 16th day of March, 1881, a further agreement, in writing, was made between the said William E. Waring, Edmund Waring and Catharine Gr. Secor, wherein it was recited that the agreements above referred to constituted a declaration of trust as to Said real estate, and also expressly declaring that the said William E. held said personal property in trust for certain purposes, which were also declared by, or inferable from, the language of said agreement. • *117 Upon the assumption that these various agreements and conveyances created a valid trust for certain purposes, the petitioners made application to the Supreme Court at Special Term upon the death of William E. Waring, for the appointment of a trustee in his place to execute said trust. So far as the papers disclose the existence of any beneficiaries of the alleged trust, it appears that all of them have joined in making this application, and, of course, have had notice of the proceeding and assent to its prosecution. The application is made under section 81 of article 2, title 2, chapter 1, part 2 of the Revised Statutes, page 1110, sixth edition, which vests in the Supreme Court any unexecuted express trust in real estate upon the death of the surviving trustee, and authorizes the appointment by it of some person to .complete its execution. Similar provisions as to personal property are contained in chapter 185, Laws of 1882. In answer to this application, various grounds are alleged why the appointment should not be made-; and, among others, it is denied that any trust was created by the transactions in question, and if there was, that some or all of its purposes have either been accomplished or were illegal'or unauthorized, or that they applied only to a portion of the property described. It is also claimed that the appellant became entitled to execute the trust as to the personal property upon the death of her husband. We think, under the authority of the statute referred to, the court had jurisdiction to inquire and determine, for the purpose of this application, whether William E. Waring was at the time of his death engaged in the execution of an apparent trust, and if so, whether that trust remained in any respect unexecuted at the time the application was made. The method of procedure under this statute does not contemplate, neither does it in terms provide for the trial and determination of questions involving the rights and interests of the various parties interested, as they are affected by the validity, extent and character of the trust, or the right of possession of the property alleged to be so held. By necessary implication, the *118 power to inquire, so far, into the subject as enables the court to judge of the existence of the trust, and the necessity for the appointment of some person to protect the interests vested in the court, must be held to follow from the express power conferred upon it, but beyond this we do not think upon such an application, it has a right to go. When a trustee is appointed by the court, and controversies arise between him and other persons as to the nature and extent of his authority, or the title, possession or control of the property claimed to be affected by the trust, such action may be properly instituted by him as will determine the questions in dispute, and establish the rights of the parties interested. On this proceeding it does not appear affirmatively, but that there are other parties interested in the property who are not before the court, nor are the facts sufficiently stated and determined to enable it to make such a decree as will be necessary to dispose of and settle the various questions which may arise as to the extent and validity of the trust. The facts referred to were, however, sufficient to authorize the court to determine that an apparent legal trust was created in the property described by the conveyances and agreements referred to, and that some of its objects remained unperformed at the time of the death of William E. Waring. These facts authorized the appointment of a trustee by the court below, and after having performed that duty, it seems to us that it should have left the determination of other questions involved, to the result of an action regularly instituted to accomplish that purpose. The order of the Special and General Terms should be modified by striking out so much thereof as assumes to adjudicate upon the extent and validity of the trust, if such provisions there are, and as thus modified should be affirmed. All concur. Ordered accordingly.