Hillyer v. Vardewater

Finch, J. I I have not been able to satisfy myself that the testatrix failed to create a trust by the terms of her devise to her executors, and gave merely a power in trust which was sufficient for all the purposes of the will. I admit that very much may fairly be said in support of that construction; but since I have reached the conclusion that the trust, if created, was valid, and did not unduly suspend the power of alienation, I prefer to put my opinion and my vote upon that basis. The substance of the testatrix’ provision is a devise of the — 15 — whole residuary estate, real and personal, in sólido, to her executors in trust to invest the same, and after paying the usual expenses of care and management, to divide the net income equally among her three daughters, and at the end of ten years distribute the principal among them in the same proportions. It is contended that by this trust the power of alienation as to the real estate and the absolute ownership as to personal property are suspended for the ten years, and possibly for more than two lives in being, and so the devise is invalid and must fail. That is true if we are obliged to regard the trust as a single and indivisible limitation, and as constituting one trust for three persons jointly instead of three several trusts for each one respectively. I think the last is the correct construction, and that the devise is to be regarded as creating a separate and several trust for each of the three children, and which runs for the life of such child, or for the shorter period of ten years if the beneficiary shall survive their lapse. The question involved is, therefore, that of the divisibility of trusts seemingly constructed as one ; and only arises where the separate trusts are aggregated into a single one by the language of the will, and so are apparently one, and not many. The inquiry thus is: when we may regard that separation as within the testator’s purpose and intent, notwithstanding the fact that he has enveloped all the interests in one constructive form. Obviously, very much depends upon the manner in which we approach the inquiry, and the presumptions which are controlling. If we come to it on the theory that the form of expression, as of a single trust, is prima fade to dictate the conclusion, and that no severance is to be adjudged unless some words or provisions are to be found on the face of the will which affirmatively indicate in the testator’s mind the presence of such purpose, we are very likely sometimes to be troubled to find them, and to be forced to a destruction of the trust by reason of their absence. If, on the other hand, notwithstanding the devise in sólido, and the admitted joint — 16 — tenancy of the trustees, the interests of the beneficiaries as between themselves are presumptively held as tenants in common, and conclusively so unless some provision of the will positively negatives that relation, then we need no help from a minute exploration of the will, but must only inquire whether the several ownership is impossible or forbidden. The importance of this distinction is, to my mind, so great that some consideration should be first given to its origin, and its recognition by the authorities. It became one of the subjects of discussion first by the chancellor and afterwards by the cpurt of errors, which reversed his decree, in the case of Lorillard v. Coster, 5 Paige, 172, and 14 Wend. 265, and which is interesting not only from the vigor of its reasoning, but, because, for the first time in the court of last resort, it brought under review the new system formulated by the Revised Statutes. The case need not be studied in all its numerous details, but attention should be given to the particular form of devise which led' to the discussion. The testator had made his brother and twelve nephews and nieces his executors, and devised his real and personal estate to them as joint tenants, and not tenants in common, in trust, among other things, to pay over a residue 'of the rents and profits to such twelve nephews and nieces, during their natural lives, and to the survivor or survivors of them, to be equally divided between them or such of them as should from time to time be living, share and share alike. After the death of the twelve nephews and nieces the estate was to be equally divided among all their children and the surviving children of such of them as might . then be dead. Both courts agreed that the devise over was too remote, and, therefore, void ; but disagreed as to the trust for the application of income. If that contemplated an estate in the trustee for twelve lives before it could vest, it was, of course, void; but the chancellor held to the contrary upon the proposition that the nephews and nieces took severally — 17 — and as tenants in common, each his or her undivided one-twelfth, with cross remainders over, which were good for two lives, but void beyond that. His conclusion was founded, not upon any words of the will indicating an actual intent of severance, but upon the statutory provision that every estate granted or devised to two or more persons in their own right is to be "deemed a tenancy in common unless declared to be a joint tenancy. He added that in the form which the trust devise assumed it would have created a joint tenancy in the beneficiaries at common law, but the statute had reversed that rule, and, since its passage, “ every grant or devise of an interest or estate in lands to two or more persons, in their own right, or to others in trust for them as the persons beneficially interested therein, has been deemed and taken to be a tenancy in common between the parties beneficially interested, unless expressly declared to he a joint tenancy.” He drew the conclusion that the twelve separate interests implied twelve corresponding trust estates, and this, notwithstanding the provision for survivor-ship. But, on a writ of error, that provision led to a reversal. All agreed that it amounted to a declaration, on the face of the will, of a joint tenancy among the beneficiaries, hut the chief justice, in arguing that they had only an equity and not an estate sufficient to support cross remainders, questioned the propriety of applying legal rules to such interests; while Judge Nelson asserted it as vigorously as the chancellor and pointed out the statute which required it. He said that the express trust allowed to he created was so allowed (§ 55) “subject to the rules prescribed in the first article of this title; ” that such article is devoted to the creation and division of estates ; and that “ it seems necessarily to follow that the rules there prescribed, concerning these estates, so far as they can be consistently applied, are to govern the interest or trust, or whatever other name the right might be called, that belongs to the nephews and nieces under the second article • ” and added that the — 18 — application of rules concerning legal estates to trusts in a court of equity is not original in the stautes, and demonstrated that fact. We are next to see what became of this doctrine in our own court after its organization. In Savage v. Burnham, 17 N. Y. 571, it was said that if the beneficial interests under the will had been given to all the children in the joint tenancy, and the will had required the whole estate to be kept together under the trust until all the lives or minorities were spent, it would have suspended the absolute ownership. In Everitt v. Everitt, 29 N. Y. 39, the whole estate was enveloped in a single trust to the executors for the purpose of the will. Question arose over the bequests to the children, and here I quote the language of the court: “ But the bequests constituted the legatees tenants in common, and they took distributively, and not jointly. It has long been a provision of statute law that a grant or devise to two or more persons in their own right creates a tenancy in common, unless expressly declared to be a joint tenancy. The rule is different as to the estates of trustees and executors, who always hold in joint tenancy. But we are now dealing with the interest of the defendants in the residue of the testator’s estate, and not with the rights of the trustees. The latter, if the trust was legal, were doubtless joint tenants, but the beneficiaries took the interest intended for them as tenants in common. If this was less clearly so upon the terms of the statute, the particular provisions of this will show that the gifts were distributive, and not joint.” The language thus quoted applies the statute explicitly to the equitable interest of beneficiaries. In a later case the presumption was utilized where its aid was sorely needed. McKinstry v. Sanders, 2 T. & 0. 181; affirmed, 58 N. Y. 662. There were phrases of -survivorship, and it was deemed an important element in the discussion that a tenancy in common was to be inferred from the equality — 19 — of division, in preference to a joint tenancy from equivocal and ambiguous expressions of survivorship. I have thus recalled the statutory rule of construction, because in examining the later cases I have imagined that it has not always been given its due force, and that, as a consequence, we have ■ sometimes, myself as often as any, borne heavier burdens im the endeavor to save the reasonable purposes of a testator than the necessities of the case required. It follows that, in examining the present will, we are to assume that the three children took as tenants in common, unless that is impossible or forbidden. Whether it is so or not remains the subject for consideration. That the testatrix meant that each of her children should have one-third of the income and one-third of the principal is quite apparent, but whether her purpose was so expressed as necessary to postpone the vesting, and turn the presumed tenancy in common into a joint tenancy may, perhaps, be most severely tested by a possible hypothesis. Let us suppose that one of the three children had died two years after the death of the testatrix and had left issue her surviving, and we were obliged to determine whether the terms of the will disinherited that issue and carried the parent’s one-third over to the surviving sisters at the end of the trust term. There is no provision for survivorship. The ultimate vesting of the fee is in the three children, not in such of them as may be living at the end of ten years. We had exactly that question presented under another will in case of Goebel v. Wolf, 113 1ST. Y. 405; 23 N. Y. State Rep. 176, where the trustees were directed to divide the estate on the arrival of the youngest child at the age of twenty-one years equally among the children, share and share alike. The question presented was said to be whether each child took, on the testator’s death, a future vested estate in the undivided one-fourth part of the property descendible to heirs and next of kin, or whether the gift was to a class and to such only as survived the trust term. There, as here, there was no immediate — 20 — gift of the remainder in terms, and outside of the direction to distribute to the children of the testator living at his death; but our attention was drawn to the fact that the ultimate vesting was not specified to be to the children living at the time of the division, or to the survivors of the children, as would naturally have been the case if the vesting was postponed to the end of the trust term. The absence of words of immediate gift we held not to be conclusive. There is such absence in the present will, and no gift till the words of distribution are reached, and that is an indication of an intent to postpone the vesting. The rule, however, in that respect, is a flexible one, and the circumstance only an argument. Smith v. Edwards, 88 N. Y. 92. It gives way to many exceptions, and does not govern the construction where other facts tend to the contrary, or different purposes are indicated. It is useful as a servant, but must not be acknowledged as a master. One of the incidents which leave it without force is the vesting of the right to the entire interest of a share before the end of the trust term. Where the gift is to he severed instanter from the general estate for the benefit of the legatee, and in the meantime the interest is to he paid to him, that indicates a vesting of the principal, and a postponement of the day of payment only. Tucker v. Bishop, 16 N. Y. 405 ; Warner v. Durant, 76 Id. 133. In the present case the gift was the trust fund, and was severed instantly from the general estate, of which it was the residue, after payment of debt and specific legacies, and the interest and income of that several residue, less the expenses of obtaining it, was not only to be paid over to the beneficiaries, but was to “ be divided into three equal portions,” as it accrued and as it was held until payment. Judge Folgeb. said in the case cited: “ It is the giving, ad interim>, directly and at once, to the legatee of the whole yearly profit of the legacy which indicates the purpose to vest the legacy at once.” And this is true, because interest is the premium for the forbearance of principal, to — 21 — which it supposes a title; and because we cannot be expected to hold that the right to the interest and income vests in one person at one time, and the principal given to the same person vests at another, without some explicit language in the will which indicates a different purpose as to each, and a discovery of some reason for the difference. There was such reason for postponing the enjoyment, and the trust was ample for effecting that purpose, but no reason for postponing the vesting of the title. On the contrary, the words of ultimate distribution seem to exclude such discrimination. If the gift, at the end of the trust term, had been merely to “ children ” and susceptible of an interpretation limited to survivors, it would not have had that meaning, and the decease of any before the period of distribution would produce no other effect than to substitute their respective representatives. 2 Jarm. on Wills, 97. But here the distribution is to be “ between my daughters herein-before named, share and share alike.” It was to be, not between two of them surviving to that date, or one alone re-' maining, but between all three specifically named, and those three share and share alike, and implying a division into thirds, and not otherwise. No argument for a joint tenancy can, therefore, be drawn from a supposed postponement of the vesting of the remainder beyond the trust term, and that cannot be relied on as indirectly declaring such joint tenancy and rebutting the statutory presumption of a tenancy in common. And so it will follow in the case which we supposed, that each daughter took at the death of the testatrix a future vested estate in one-third of the residue, subject only to the execution of the trust. A doubtful claim of joint tenancy will not do in face of the statute, which declares the beneficiaries tenants in common, unless the will makes them, in express terms, joint tenants. To that may be added two other admitted rules of construction. One, that the law favors a vested in preference to a contingent estate, and the other that a construction is to be preferred — 22 — which saves and does not destroy the will. It seems to me that no reasonable doubt can remain that the three daughters took each a future vested estate in one-third of the property as tenants in common, and by separate and severable titles. Of course the trust must be deemed to correspond, and becomes divisible into a separate trust for each; for while it is the mould which holds in its clasp the beneficial interest, it takes the exact shape which those interests assume, and fits like a mould to every characteristic of the core. The death of either one would thus vest her share in her heirs or next of kin. The testatrix made no provision for that event, but left it to be governed by appropriate legal rules. The right to one-third of the income and one-third of the property itself, which thus would have devolved upon the deceased child’s heirs or next of kin, would be a vested estate in such third, freed and discharged from the trust. It could not be otherwise. Every purpose of the trust as to that portion of the estate would be fulfilled and ended. The trust was to pay over rents and profits to the daughter, not to her successors. They were not made beneficiaries of the trust, nor were.the executors in any manner nominated or appointed as their trustees. The portion which devolves by death is necessarily freed from the trust by that event, and the executors hold that portion, not as trustees for such heirs and next of kin, but as tenants in common with them of such portion. The result is clearly sketched in the same detail in Everitt v. Everitt, supra. The effect of the death of one of the beneficiaries where there is no survivorship and no disposition by the will of the share or portion of the deceased implies a purpose on the part of the testator to have that share or portion go under the rules of law and as they dictate. Substantially that was ruled in the Matter of Verplanck, 91 If. Y. 439, where it was suggested that no provision was made for the disposition of the fund in the case‘of the death of either one of the nieces unmarried. Earl, J., answered: “ But the — 23 — law provides for such a case. The purpose of the trust, as to the legatee dying, will by that event be fully accomplished. There will be no longer any purpose for which the trust could be continued, and hence it will cease, and at once the third will pass to those upon whom it will devolve under the provisions of the will or by law.” Under the application of that doctrine to the present will each one-third of income and of estate upon the death of its owner as beneficiary will vest in her heirs and next of kin and become at once alienable ; and the share is left in that condition purposely and intentionally. What is there which forbids this intended and inevitable result ? The one thing which can be said, and the only thing possible to say, is that on the face of the will there is disclosed an intention of the testatrix to keep the property together without division in the hands of the executors for ten years. It would not alter the case if such, was the fact. But no such absolute intention appears. It does appear that such was her purpose if all three children survived the ten years. The devise assumes their survival. At the end of ten years the whole property is to be equally divided among the three, and no word is said which contemplates their earlier death, and no provision is made for the contingency of their decease. We have a right to say from the terms of the will that the testatrix meant to have the whole property kept together, in bulk, for ten years, if her three children lived so long as that, but we have not the least warrant for saying that such was her intention if one or more should die at an earlier date, for she has expressed nothing of the kind. On the contrary, the very absence of a provision for that emergency shows that her purpose was not to keep it together in that event, but let the law separate it after its normal fashion. Indeed, there is some slight indication that she meant to make that separation easy and convenient if necessity for it should occur. The will not only authorizes a sale of the real estate at the end — 24 — of ten years, for the purpose of distribution, but confers another and discretionary authority, in a separate clause, to sell in the discretion of the trustees, and so, if necessary, at an earlier date. • That would facilitate an earlier division than the final one, at least, and remove the last obstacle to its convenient accomplishment. But even if the purpose to keep the property together in the hands of the trustees for the ten years, under all circumstances and in every emergency, could be gathered from this will, the fact alone would not destroy the tenancy in common of the beneficiaries, and prevent the severability of their interests. The difference between a joint tenancy and a tenancy in common is said to be that in the former there is unity of title and possession, and in the latter unity of possession without unity of title. The divisibility of rights does not inevitably involve a divisibility of actual possession at the moment when the rights accrue. The several right may exist, although the actual possession under it and in accordance with it is postponed. As was said in Manice v. Manice, 43 N. Y. 370, a vested estate can exist in an' undivided share as well as in a specific piece of land, and in Vanderpoel v. Loew, 112 N. Y. 180; 20 N. Y. State Rep. 654, the shares and interest are several, although the fund remains undivided. And so if it were possible to say, which I do not at all admit, that the will required the land and the money to remain for management and administration in the hands of the executors for ten years, in any event, that would not necessarily prevent the existence in it of a several interest to an undivided share, or force the tenants in common into the position of joint tenants. In some instances it might bear on the question, but would not be conclusive. Indeed, in Goebel v. Wolf, supra, we vested in each of the four children an undivided one fourth of the residue, subject to the trust, although it was to run for a long period, and required the property to be kept together, and, indeed, permitted the trustees to use it in carrying on the business of the deceased. — 25 — I conclude, therefore, that each of the three children took a future vested estate, which upon her death would vest in her heirs and next of kin; that the trustees held an estate for each, corresponding with her right, and that the power of alienation was suspended in each case for only a single life, or the shorter period within that life of ten years. It follows that the judgment should be affirmed, with costs.