Townsend v. Allen

Van Brunt, P. J. In view of the complete statement of facts contained in the referee’s opinion, it is not necessary to state the same in detail here, and we might very well rest our decision upon- the opinion of the referee, were it not, perhaps, proper to note one or two objections which are urged with great persistency upon the part of the appellant. It is claimed that the deed in question was void because of the fiduciary relations which existed between one of the trustees and the grantor in the trust-deed. This might be true were the provisions of the trust-deed unnatural, considering the relation of the parties to the same, or had there been any evidence from the nature of the instrument that the grantees therein were to be greatly benefited thereby. We find from the evidence in the case that the grantor in the deed recognized its existence for 24 years after its execution, and, by a will made shortly before his death, clearly had in mind the existence of this instrument, and in no way intended to dispute its validity. The grantor of the deed having so long acquiesced in its existence, having by his will reaffirmed its validity by the peculiar nature of the provisions of the will, showing that he had the trust-deed in mind, and that he knew that he had thereunder disposed of the estate of which it treated, how can his personal representatives be now permitted to undo'that which the testator supposed he had effectually done, and defeat the very purposes which he had in mind at the time of making his will? It seems to us, under these circumstances, with not the slightest particle of proof attacking the good faith of the trustees in this matter, it would be carrying the doctrine of presumption to a most dangerous extent to hold that a trust-deed so long recognized, acquiesced in, and reaffirmed should be set aside simply upon presumption. And it is urged, further, that the agreement does not create a valid trust for the next of kin because it was made for the personal convenience of the settlor. We are not aware that the personal convenience of the settlor does not form a good consideration for the creation of a valid trust. If any authority were needed for the purpose of showing that a valid trust may be created for the convenience of a settlor, it is found in section 2463 of the Code, where the right of a party to convey property in trust for his own benefit is expressly recognized, where it provides that the article in reference to special proceedings shall not apply to any money, thing in action, or other property held in trust for a judgment debtor where a trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor,—a clear recognition of the right of a [77] party to convey trust property, the beneficiary use of which may be in himself. The instrument in question conveys the property to his trustees, and although he appoints them his attorneys in fact, it is simply for the purpose of aiding them in the execution of tiiis trust, and gives direction for the disposition of the property upon the termination of the trust by the death of the settlor. The claim that no estate vested in the next of kin,—that the instrument was simply a deed of contingency, and the direction therein contained testamentary, and was revoked by his will,—is entirely unsupported by the language of the instrument, and by the fact that, in the will of the settlor, the existence of this deed and a belief in the efficacy of its provisions is distinctly manifested*. The objection that the deed contains a direction for the accumulation of personal property in contravention of the statute is one of greater weight. It may be doubtful whether the provisions of this deed can be treated as a direction for the accumulation of income. By its provisions the settlor is to have all the money required for his support which the estate may produce, and, if necessary, such part of the principal as may be required. To be sure there is no provision for the payment over to the settlor of any excess of income which he might not require for his support, but, as he is the judge by the terms of the deed as to the amount which he shall require, and the provision in regard to reinvestment only applies to that which he shall not draw, there does not seem to be any contravention of the statute in the provisions of the deed. Furthermore, the settlor at the time of the execution of this deed was a resident of New Jersey. It would appear that he lived there until his death. His will was probated in that state, and the executor here contesting is the executor appointed under that will by the probate court of Monmouth county, N. J. The distribution of the personal property is made according to the laws of the domicile of its owner, and, although this property was actually situate within the state of New York, yet its legal status was at the domicile of its owner, in the state of New Jersey. Such being the condition, it would seem that the laws of the state of New Jersey should govern in respect to the validity of the provisions of this deed, and not the laws of the state of New York; and it is conceded that under no circumstances are the provisions of the deed in respect to the accumulation of income in contravention of the laws of the state of New Jersey. The judgment appealed from should be affirmed, with one bill of costs. Daniels, J. I concur.