Palmer v. Paret

FOLLETT, J. The learned counsel for the appellants insists that the legal title vested in the three daughters other than Mrs. Paret, and in the plaintiffs, as trustees, for her; that they are tenants in common; and that an action to partition may be maintained. The learned counsel for the respondents insist that a valid trust, was created; that there was a conversion of the realty into personalty, out and .out; and that the legal title to the entire estate is in the executors, as trustees, under the will. It is apparent that testator intended to empower the executors, in their discretion, to con [569] vert his residuary estate, real and personal, into money, and pay one-fourth thereof to each of his daughters, Mary E. Palmer, Alice Rowland, and Abby Story (now Marshall), and, as trustees, to hold the other fourth in trust during the life of Emily L. Paret, collect the income thereof, and apply it to her use during her life, and after her death to pay it to her issue. However, the executors are not commanded to convert the estate into money, but are authorized to divide it into four equal shares, and “convey, pay, and assign the shares of my daughters Mary Elizabeth Palmer, Alice Rowland, and Abby Story to them absolutely, and hold, retain, invest, and keep invested the share of my daughter Emily L. Paret, and collect,, receive, and pay or apply the rents, interest, and income arising therefrom to the use of my said daughter during her life.” In the-sixth clause the executors are empowered “to make all divisions and partitions of any real and personal estate, of the proceeds thereof,” and “to rent any of my real estate until the division or sale thereof,” and to pay all taxes and premiums on policies of insurance until the property shall be divided or sold. The executors are not directed to apply to any purpose all of the rents and income arising from the undivided estate, nor are they directed to apply one-fourth of the rents and income arising from the undivided estate to the-use of Mrs. Paret, but the direction in respect to the application of' “rents, interest, and income” relates solely to that which shall arise after the division of the estate from her share held in trust. The language is, “and hold, retain, invest, and keep invested the share of my daughter Emily L. Paret, and collect, receive, and pay- or apply the rents, interest, and income arising therefrom to the use of my said daughter during her life.” It may be that, the income of one-fourth being given for the support of Mrs. Paret, the-executors could be compelled to apply some portion of the income of the undivided estate, not exceeding one-fourth, to her use, in advance of a division and of the establishment of the trust estate. Under the statutes of this state (1 Rev. St. p. 728), the interests- and the estates of the devisees under this will seem to be plain: “Sec. 55. Express trusts may be created, for any or either of the following purposes: (1) To sell lands for the benefit of creditors;" (2) to sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon; (3) to receive the rents and profits of lands, and apply them to the use of any person, during the life of such person, or for-any shorter term, subject to the rules prescribed in the first article of this title; (4) to receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed in the first article of this act. “Sec. 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.” “Sec. 58. Where an express trust shall be created, for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees: but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers, contained in the third article of this title. [570] “Sec. 59. In every case where the trust shall be valid as a power, the lands to which the trust relates, shall remain in, or descend to the persons otherwise entitled, subject to the execution of the trust as a power.” An express trust is not created to sell or lease lands for the benefit of legatees, because there is no positive direction that the executors shall sell the lands, nor is there any direction that the lands be leased for the benefit of legatees. There is no trust under the third subdivision of section 55, because there is no direction to apply the rents and profits to the use of any person during the life of such person. In Cooke v. Platt, 98 N. Y. 35, the testator gave •all of his estate to his executors absolutely, with' “full power” to receive the rents, issues, and profits, and to sell, mortgage, and convey, in their discretion, upon trust to divide it or its proceeds, after the payment of his debts, among his four children, in equal proportions. It was held in that case: “The main purpose of the testator was to give his estate, remaining after .payment of his debts, equally to his four children. He imposed upon his ■executors the duty of making the division, and this was the declared purpose of the trust If there was nothing further in the will, there could be no question. The statute does not authorize the creation of a trust for the partition of lands. But a power may be created for this purpose, and the devise to the executors, though void as a trust, may be valid as a power to -divide and distribute.” It was held that, in order to establish a valid trust under the first- or second subdivision of section 55, there must be an absolute and imperative direction to the executor to sell the land. In other words, it was held that unless the will converts the realty into personalty, out and out, no valid trust, under the first or second subdivision of the section, is established. On the face of the will it is plain that the testator intended not to require his executors to sell the real estate, but to permit them to sell it and divide the proceeds, •or to divide the real estate, among the devisees. Under such circumstances there is not a conversion of the realty into personalty. Cooke v. Platt, 98 N. Y. 35; Scholle v. Scholle, 113 N. Y. 261, 21 N. E. 84; Clift v. Hoses, 44 Hun, 312, 116 N. Y. 144, 22 N. E. 393. The court of chancery of New Jersey has decided that this will does not convert the realty into personalty. Story v. Palmer, 46 N. J. Eq. 1, 18 Atl. 363. In Morse v. Morse, 85 N. Y. 53, the will related to a farm of 150 acres, which was incapable of being divided into ;six parcels of 25 acres each without substantially destroying the value of the property; and it was held, under the circumstances, -that the testator must have intended that his land should be converted into money. There was not in that will, as in this, power given to the executors to divide the realty, as such, among the beneficiaries. Whether a power to sell realty is an absolute legal •bar to an action to partition has been considered and determined "by this court in the negative (Mellen v. Banning, 72 Hun, 176, 25 N. Y. Supp. 542), and we see no occasion for rediscussing the question. All of the beneficiaries, except Mrs. Paret, desire that the land be partitioned or sold as may be for the best interest of the •devisees. Two of them are plaintiffs, and one is a defendant -making no defense. The executors also desire that the land be par [571] titioned or sold under the direction of the court. It is apparent that the sisters are not agreed as to the management or distribution of the estate, and it may not be unwise for these executors to ask that the property be sold or divided under the direction of the court, rather than to assume to divide or sell it on their own judgment. It would seem that Mrs. Paret’s interests would be best served by a partition of the realty or a sale and division of the avails, to the end that the trust for her benefit may be established, her income made reasonably certain, and it be known what amount is to go to her issue on her death. We think, under the facts proven, that the power of sale is not an equitable reason for denying a judicial partition or sale of the land. It is urged that the executors, as such, are necessary parties to this action. That defect, if it be one, appears upon the face of the complaint, and, not having been taken by demurrer or answer, is waived, and cannot be insisted upon as matter of right. Code Civ. Proc. § 499. A defect of parties not pleaded is seldom a sufficient ground for dismissing an equity action (Pondir v. Railroad Co., 72 Hun, 384, 25 N. Y. Supp. 560), and in this case the question can be easily obviated by an amendment. The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event. VAN BRUNT, P. J., concurs in result. PARKER, J., concurs.