Chipman v. Montgomery

Learned, P. J.: By the first will, George 0. Chipman had a legacy of $500; by the second, of $300. By the first will, Charlotte C. Sherman had $200; by the second, $600. George C. Chipman has received $500; Charlotte C., $600. The plaintiffs now claim that these legacies were cumulative. However that may be, I see no right which these parties, as mere pecuniary legatees, have to bring a suit for the construction of the will. They should sue for their respective legacies, or take proceedings before the surrogate to compel the payment. Nor does it seem to me that, as to these legacies, they have a "joint right of action. This remark applies to any other pecuniary legacies, if there be any others, which have not been paid. The wills were proved in 1860, and this action was not commenced till 1873. Nor do the plaintiffs aver, as a cause of action, the non-payment of any legacies, or the demand for payment of the same. They ought not, therefore, to maintain this action, merely on the question whether or not the legacies were cumulative. Aside from this question of the cumulation of the legacies, it seems to be of little consequence whether the former will should be deemed revoked by the latter or not. The residuary clause, which is the clause really in controversy, is identical in the two wills, except that the word “ heirs ” is in the second will at one place (as shown above in brackets). It cannot be thought, however, that the addition of this word changes the meaning. There is, then, to be examined, only this residuary clause, and the claim of the plaintiffs in respect thereto. The plaintiffs’ claim, briefly stated, is, that the power to lease and sell, in this residnauy clause, made an express trust in the wife (the acting executrix), investing her with the estate during the minorities of the three infant daughters; that therefore the residuary devise and bequest were void, as suspending the absolute ownership of personal, and power of alienation of real estate, during these minorities; that therefore the estate vested in the heirs at law and next of kin. And further, that this residuary devise and bequest is void, on account of the life estates in joint tenancy, and the contingent remainders, irrespective of the illegal suspension under the alleged trust; and that therefore the estate vested in the heirs at law and next of kin. It is to be noticed, then, that the plaintiffs do not claim as cestuis [742] que trust, under the provisions of the will, or as trustees. But they claim adversely to the provisions of the will, which, as they allege, create a trust. They claim as heirs at law and next of kin. So far as the real estate is concerned, it seems to be settled that the heir at law or devisee, claiming a mere legal estate, cannot come into a court of equity to ask a construction of the will. He should bring ejectment. (Walrath v. Handy, 24 How., 352 ; Onderdonk v. Mott, 34 Barb., 106 ; Woodruff v. Cook, 47 id., 304; Post v. Hover, 33 N. Y., 593; Bailey v. Southwick, 6 Lans., 356.) These plaintiffs claim that, by reason of the invalidity of the residuary clause, the real estate passed to the heirs at law, including themselves. This is a question of legal title, to be tried by a jury. An action for judicial construction is exceptional. In such an action the court acts, as it were, the part of adviser of the parties. And the ground of such an action is, that some person, usually the plaintiff, .but some times the defendant, charged with an express trust, is at a loss to know how to perform it. The action should not be extended beyond its strict limits, because litigation is tempting when both sides are paid out of the fund. Generally it is better, as in other actions, that parties should litigate to enforce positive claims, and at the peril of costs. (Smith v. Rockefeller (10 S. C. [3 Hun), 295.) When parties have acquiesced in a will for ten years, it is doubtful whether the _ court ought not to leave them to their ordinary rights of action. It is said that, in regard to personal estate, a rule must apply somewhat different from that applicable to real estate; that the executor always takes the title to personal estate as a trustee; that, so far as the provisions of a will are valid, he holds it as trustee for the persons to whom it is bequeathed^ and, so far as invalid, for the distributees under the statute; that a court of equity has general jurisdiction of trusts; that, therefore, an action for construction of a will may be brought against an executor holding personal property, by one entitled as distributee. (Bowers v. Smith, 10 Paige, 193.) Assuming this doctrine to be correct, its application must depend on the fact that the executor has in his possession, when the action is brought, personal property, held thus in trust either, under the provisions of the will, for the legatees, or, if the provisions are void, then for the distributees, under the statute. Now, on exam [743] ining the complaint herein, it will be found that there is no allegation that Montgomery, the surviving administrator de bonis non, with the will annexed, of Chipman, has any personal property in his possession. It is, indeed, alleged that, when the letters testamentary were issued, there was a large amount of personal property. But that was in 1863, ten years before the suit was commenced. It may have been disposed of in the payment of debts. All the allegations of the complaint, on the matter of the personal property, seem, as far as can be judged, to be denied by the answer. The justice who tided the cause distinctly omitted to find that personal property remained unadministered at the death of Mrs. Chipman, and made no finding that Montgomery, the administrator de bonis non, had any personal property in his hands. On looking at the case, no proof seems to have been made as to any peisonal property now in the hands of the administrator unadministered. There is a stipulation that John C. Chipman left a certain amount of personal estate, but that is qualified by the statement that “ this admission is not to be construed to charge any of the defendants with any sum.” In the face of this qualification, and of the finding of the justice, and after the lapse of ten years from the granting of letters on the will, it would not be our duty to assume, without proof, that there was any personal estate now unadministered. It is not a reply to this objection to say, that, if the executor or administrator has improperly applied the personal estate, he is liable. If an action were brought against the executor or administrator, charging him with having applied these alleged trust funds to certain parties, while they rightfully belonged to the plaintiffs, in such an action the actual present possession of trust property might not be essential. But the present is an action for the construction of a will, for directions to the executor or trustee as to his future conduct. The ground of the action is that the trustee has, in the future, some duties to discharge, as to which he needs the advice of the court. The party, then, as a material matter, should show that there are trust funds now actually in the trustee’s hands, to be disposed of in the future under the trust, express or implied. Much of the plaintiffs’ argument implied that, as a matter of fact, the controversy respected real estate. The plaintiffs urged that a power to lease and sell property showed that there was a [744] trust. Now, so far as personal property is concerned, that argument is not needed. An executor, Chancellor Walworth said, in the case above cited, always takes the title to personal estate as a trustee. But as to the real estate, the argument was pertinent. Because, unless executors have power to receive the rents and profits of lands, they take no title (1 R. S., [m. p.] 730, § 75); and it was argued that a power to lease implied a power to receive rents and profits (Tobias v. Ketchum, 32 N. Y., 319); and that therefore the executors had a trust, and that the trust was void. Whether this was sound, or not, I do not say. But it was an argument applicable to real, not to personal estate. And indeed 'it may be said that the whole course of the plaintiffs’ argument was to prove that the provisions of the residuary clause created an express trust, and not to claim that an executor, simply as executor, held the personal estate as a trustee. I notice this line of argument, on the plaintiffs’ part, as evidence that, as would also seem from the proof, the controversy was really as to real estate. And as to real, estate, as was said above, the heir at law, claiming a mere legal estate, cannot bring an action for construction of the will. In my opinion, therefore, these plaintiffs, as mere pecuniary legatees severally of a few hundred dollars, could recover their legacies, if unpaid, in a simple way, and ought not, especially at this late day, to maintain an action for construction of the will. As heirs at law, if the plaintiffs have any • title to the real estate, it is, on their own view, a legal title vesting in them on account of the invalidity of the residuary devise. As owners of a, legal title, they cannot maintain' such an action as this. In respect to personal estate it is. not alleged, nor proved, nor found, that there is any unadministered. There is therefore, no need of this action to advise the administrator, as trustee, how to administer; and the action is unreasonably late. On the construction of the residuary clause and the alleged trust, I express no opinion. The Special Term was fight in dismissing the complaint, with costs. But no construction should have been given to the will, lest future actions should be prejudiced. The judgment appealed from should be modified, without costs of the appeal to either party.