Cowley v. Twombly

Barker, J. If the sixth clause of the will created a valid trust, all of the personal property for which the plaintiff sues except the one article for the value of which he had judgment in the court below was held by his intestate only in his capacity as trustee, and at his death was not assets of his own estate. Trecothick v. Austin, 4 Mason, 16, 29. Johnson v. Ames, 11 Pick. 173, 181. Buttrick v. King, 7 Met. 20. Hunnewell v. Lane, 11 Met. 163. Farrelly v. Ladd, 10 Allen, 127. Upon the death of the plaintiff’s intestate, under the terms of the trust, the absolute ownership of all the trust property went to the defendant. The title and right of possession being in her, no reason is shown why the plaintiff as administrator of the estate of the deceased trustee has any claim upon or right to possession of the property of the trust. - The plaintiff contends that the trust was void, and that the trust property belonged absolutely to his intestate, for two reasons; first, that the trust was void for indefiniteness in the beneficiary, and, secondly, because it was against public policy, as tending to break up the marriage relation between the testator’s son and the son’s wife. There is no such indefiniteness as to the beneficiary as to make the trust void. In any event, the trust property must vest absolutely in the son before his death, or then must vest [397] absolutely in the defendant. During the continuance of the trust the income might be paid in whole or in part to the defendant, in the discretion of the trustee, or be added to the principal. The terms of the trust made it certain that the whole trust property should go to a beneficiary designated by the testator, and ascertainable, at the latest, at the termination of the trust. The scheme of the trust no -more tended to induce the son improperly to procure a divorce between himself and his wife, than to induce him to procure her death. Either event would give the son an estate which otherwise he could not have. But the testator was under no obligation to give property to his son, and had full right, if he chose, to give it to the defendant, his niece. ■ There is here no gift to the son upon a condition that the son should lose the benefit of the gift if he should not separate from his wife, as in Wren v. Bradley, 2 DeG. & S. 49, and in Conrad v. Long, 33 Mich. 78. What the testator has done is to provide that, upon the son’s death, the property shall go to the defendant, unless before the son’s death the woman who when the will was made was the son’s wife had ceased to be such by reason of death or divorce. That a devisee of a contingent remainder will benefit by the death of the life tenant does not make such a devise void as against public policy, because tending to induce the remainderman to compass the death of the life tenant. The separation of husband and wife, the marriage continuing, is against public policy. Hence conditions annexed to limitations by settlements or wills, providing that a husband or wife shall lose the benefit of an estate unless they live separate, have been held void. H. v. W., 3 Kay & J. 382. Cartwright v. Cartwright, 3 DeG., M. & G. 982. Wren v. Bradley, 2 DeG. & S. 49. Conrad v. Long, 33 Mich. 78. But while the separation of persons who are husband and wife is against public policy, divorces are provided for, sanctioned and regulated by law. There is no more likelihood or presumption that a divorce will be wrongfully brought about by one of the parties to a marriage in order to secure property, than that a death will be so occasioned. A testator no more offends public policy by simply making his bounty contingent upon the occurrence of a divorce than of a death. Judgment on the finding.