Donovan v. . Van De Mark

"Danfoeti-i, J. The words of the will plainly indicate the intention of the testator: “I give,” he says, “devise and 0 bequeath to George Chambers all my estate, in trust nevertheless, for the necessary support and maintenance of my son Abraham during his natural life, and after his death I give and bequeath the said estate to Abraham’s children.” “ I appoint” Chambers executor of this will, “ and empower him to sell ” certain premises ; those in question. First. The title is conferred on Chambers, but it is apparent that the testator did not intend that he should take it absolutely, and for his own benefit, for although he gives to him the land, it is in trust. Second. Nor did he intend that the beneficiary, his son Abraham, should have the use or control of the land or its whole proceeds, for the trust declared is for his “ necessary support and maintenance,” and if the respondent's contention is right, these words of qualification must be disregarded. If the son takes the whole he may buy therewith not only “necessary meat, drinks, apparel, necessary physic, and such *247 other necessaries,” and so receive his support and maintenance, but articles purely ornamental and therefore in no wise contributing to either, nor would he be limited to those things which were for his personal advantage, but might waste his substance among his companions, not necessarily in riotous living, although the evidence suggests its possibility, but in pleasant, and if the money was his own, not unreasonable entertainments of friends ; he might even hazard the fruits of the real estate in trade, or speculation, or games of chance, and so be deprived of that aliment, clothing and shelter, and other necessaries, which only his father intended to secure for him ; as is clearly indicated by the words, “ support and maintenance.” These are words of limitation; they define the purpose of the trust, and would of themselves require the determination we are about to make. But there is moreover the word “ necessary.” This emphasizes and gives increased significance to the others, modifies and narrows their application, and from the whole I think it is inferable not only that Abraham was not to take for himself, but that some person other than himself should determine the extent of his allowance. If otherwise he would be left to judge of his own necessities which would contravene the maxim absque non debet esse judex in propria causa, and the words would according to the general sense of man have no restraining force. It follows from these considerations that Chambers the trustee is to determine how much and what is “ necessary ” for the testator’s son, his support and maintenance, and that the property is vested in him in order that his determination may be made effectual, to give or to Avithhold. This can be done only by his management of the estate, his receipt of rents or profits, and his application of them according to his judgment in the support and maintenance of Abraham. All these powers are plainly given, or to be inferred. This conclusion is strengthened by those provisions of the will under AAhich Chambers is empoAvered at his discretion to bargain, sell and convey the premises. He has then a poAver to manage, and a duty *248 to perform in respect to the estate. It would seem therefore that a trust valid under the provisions of title 2 (p. 11), chapter 1, article 2, § 55, was created, and a legal title vested in the trustee. It would not be profitable to examine or collate the criticisms of courts upon special phrases contained in instruments of this nature, for however they hold in regard to particular words or provisions, it will be found they all agree that it is not necessary the trust should be stated in the very words of the statute, but it is sufficient if a purpose within the statute is clearly embraced in the language used, for the execution of which the trustee may be clothed with the legal title. (Leggett v. Perkins, 2 N. Y., 297; Beekman v. Bonsor, 23 id., 298; Vernon v. Vernon, 53 id., 351; Heermans v. Robertson, 64 id., 332.) Verdin v. Slocum (71 N. Y., 345), on which the respondent relies, is quite different from the case before us. In that case the trustees were to permit the beneficiary to take all the rents, etc., themselves exercising no discretion or control. As the judgment of the court below was given upon a construction of the will different from that above rendered, it should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed.