Weeks v. Cornwell

Larremore, J. The residuary estate referred to in the twenty-fourth subdivision of the will is evidently the Fifth avenue property. All of the testator’s real estate except this had been previously devised, and provision made for specific charges upon each portion thereof. We are therefore to consider : First. His intention as to the disposition made of his residuary estate. Second. The validity of such disposition. It is apparent that during the life of the widow the executors had no present interest therein, but the testator designed that they should use the same in their discretion for the best interest of his whole estate, and for that purpose he gave them a permissive power to mortgage, and to divide the proceeds thus realized (after deduction for taxes, assessments, insurance and repairs), within ten years, to each and every of the legatees named in his will (except his servants), in like proportion to their previously specified legacies. What he denominates as legacies were in reality devises, in trust and in fee, of a large portion of his real estate, which would necessarily be subject to fluctuations of value during the ten years in which distribution of the surplus realized by mortgaging the residuary estate might be made. Eighteen specific devises of a life estate and remainder in fee in several parcels of land, in different localities, constitute the basis of the intended distribution. Taken as a whole, the will plainly indicates that each portion of the property devised should bear its own burdens, and there is no foundation for the claim that this residuary estate should be used for the payment of specific liens upon the property already devised. By the twenty-seventh, twenty-eighth and twenty-ninth subdivisions, authority is given to repair,, build or rebuild noon the trust property, and to mortgage the specific parcel [282] or parcels of land upon which said buildings shall be situated, for that purpose. It was further directed, by the thirtieth and thirty-first subdivisions, that all taxes, assessments and incumbrances against his property at the time of the testator’s death should b.e paid out of his personal estate, and if that should be insufficient^ then such deficiency should be paid out of the income of his entire estate, except that derived from the property devised for life to his wife, who is directed to pay the annual taxes and all assessments thereon, with a further direction to the executors to pay tne annual taxes and all assessments upon the property devised to them in trust out of the income thereof respectively. There is no proof of the existence of any lien or incumbrance upon the premises devised. Ho legacies, as such, are given by the will, nor does it confer upon the executors any power of sale or any right to receive the rents and profits of the residuary estate. As to the twenty-fifth subdivision : The words “ upon the termination of the real estate trusts herein contained” are qualified by and must be read in connection with the words immediately following, “ where I have not hereinbefore disposed of the fee of my real estate.” The testator had already-made disposition of the fee of all of his estate, except the Fifth avenue property, and it is a reasonable inference that by the term “ real estate trusts ” he meant simply the trust in relation to the Fifth avenue property referred to in the twenty-fourth subdivision. And, although he therein directs that such trust property be used for the best interest of the whole estate, this direction must be understood in a qualified sense, for the moneys to be raised by mortgage upon the residuary estate were first to be applied in payment of taxes, assessments, insurance and repairs upon it; then the remainder or surplus of such moneys was to be divided at any time within ten years among each of the legatees in the proportions named. [283] Briefly stated, the testator says to his executors: I give this property to you. It may happen that the rents and profits thereof will not always be sufficient to pay future taxes, assessments, insurance and repairs thereon, or some other contingency may arise. You may raise money for that purpose by mortgaging the premises at any time within ten years, and if any surplus remains after making such payments, you will divide it among my legatees in the proportion" in which their respective legacies (already bequeathed) bear to each other. This, in substance, appears to have been the testator’s intention, and if valid, should be given effect (Keteltas agt. Keteltas, 72 N. Y., 312; Colton agt. Fox, 67 id., 349). 2d. Do subdivisions twenty-four and and twenty-five, above referred to, or either of them, constitute a valid trust ? The title to the residuary estate vested in the executors, subject to the life estate, and the object of the trust appears to be within the purview of the statute which confers authority “ to sell, mortgage or lease lands for the benefit of legatees or for the purpose of satisfying any charge thereon ” (3 R. S. [7th ed.], p. 2181, sec. 55). Subdivision twenty-five plainly indicates an intention that the fee of the Fifth avenue property should vest in fee upon the termination of the life estate of the widow, for that trust estate was the only property which had not been previously disposed of in fee. ' And it is equally clear that each of the. legatees named was to be regarded as a legal heir to such estate. But the subject of the trust is indefinite and cannot be equitably enforced. In order to make division in the “ proportions named ” the value- of ninety-seven parcels of land must not only be ascertained, but also the value of the estate of each life tenant and of the estate in remainder in fee, and also of such as may have died, or may thereafter be born. An examination of the eighteen previous devises of the will clearly show that such a distribution as is contemplated would [284] lie impracticable and uncertain (Bayeaux agt. Bayeaux, 8 Paige, 333; Story's Eq. Juris., sec. 979,1068b, 1073). bio approximation of such values can be' reasonably ascertained and the cy pres doctrine contended for, if applicable, would be impracticable (Jackson agt. Brown, 13 Wend., 445; Story's Eq. Juris., sec. 1074a, p. 345). The division of the residuary estate is predicated upon the devises previously made, and according to the proportions thereof. Unless the value of such proportions can be reasonably ascertained, the intention of the testator cannot be carried out. To allow an equal distribution of such residuary estate among the legatees would virtually make a new will and defeat the object of the testator. The executors by the will took the title, and not a. mere power in trust. They have no authority to sell or lease, they can only mortgage, and their right to make distributions of the surplus of proceeds thus realized is to be exercised within ten years. This right does not suspend the power of alienation prohibited by the statute (3 R. S. [7th ed.], secs. 14, 15, p. 2176). But executors had no power to alien the property; and their right to divide the surplus proceeds . realized by mortgaging the same terminated by the falling in of the life estate, when the fee, by the twenty-fifth subdivision, vested in the legatees therein named. Yet, as before observed, the subject of the intended trust, in respect to the division of the fee of the trust property, is indefinite and uncertain, and for that reason the trust should be declared to be void. The action for partition should be sustained, and if in its progress it shall appear that other persons than those now appearing therein are necessary parties, the court will direct them to be brought in.