
    Oscar P. Rochevot and Eleanora M. Beck, Appellants, v. Caroline Rochevot and Others, Respondents.
    
      Will — speciñe performance of an agreement among beneficiaries, which would thwart the intention of the testator and destroy a trust created for an incompetent, refused.
    
    A testator, "who was survived by Ms wife and five children, one of whom was. mentally incompetent, was, at the time of his death, the owner of three-fifths of the capital stock of a brewing corporation, the remainder of which was. owned by Ms wife and four of his children. By his will he directed that his wife should have the rents, profits and other income of his entire property during .her natural life and that, after her death, his property should be equally divided among his five children. He next provided that, if any of his children should sell any of the brewery stock before his death without his written consent, or after his death and during the lifetime of his wife, without the written .consent.of his wife and the other children, such child should be disqualified from acting as trustee or executor of the will and that the' share of such child should be divided among those of his children who were obedient to his wishes. The will nominated the testator’s Wife and his four competent children executors of his will and then provided “I give, devise and bequeath to them the share of my son Gustave C, Eochevot in trust for him, they to continue as such trustees until my said son Gustave 0. Eochevot shall recover from his present mental ailment and become again competent to conduct and manage his own affairs, when they may, if they deem it advisable, pay to him or deliver to.him his share or interest. They shall in the meantime make proper and . careful provision for his maintenance, support, care, safety and comfort.”
    The testator also gave his executors authority “to sell and convey or lease” any of the property, real or personal, and provided that they should “ serve without bonds” and directed that incase any difference should arise “pertaining to the administration” of the estate, “the majority should rule.”
    Three years after the death of the testator, the widow and the competent children of the testator entered into an agreement containing the following recital: “ Whereas, the parties to this agreement are desirous of determiaing the said life estate, created by the provisions of said will and the trust created by said will, and to make a present distribution of the said estate between the parties . entitled to the same on the terms and conditions hereinafter set forth.”
    By this agreement two of the children agreed to sell to their mother and the two other children substantially all the property which they had acquired from their father’s estate, including that which they might receive from the estate of their incompetent brother. Forty-five thousand dollars of the consideration was to be paid in cash and the remaining portion in real estate at a value fixed by appraisers. The respective parties agreed to execute the necessary conveyances to make-the transfers effective, and also to execute releases as executors of the will and as trustees of the incompetent and as directors, officers and stockholders of the brewing company.
    It was further agreed that the widow might institute proceedings to procure her appointment a(s trustee of the person and estate of the incompetent, and also that such proceedings should be taken as were necessary to discharge the trustees under the will and procure the appointment of the testator’s widow as sole trustee.
    
      Meld, that the court would not compel the specific performance of the agreement against the protests of two of the parties thereto and the committee of the incompetent, for the reason that such'performance would result in the destruction of the trust created by the testator for the benefit of the incompetent and in thwarting the intentions of the testator as evidenced by his will.
    Appeal by the plaintiffs-, Oscar P. Eochevot and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 6th day of September, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.
    
      Frank Brundage, for the appellants.
    
      A. C. Wade and John W. Fisher, for the respondents Caroline Rochevot and Matilda A. Mesinger.
    
      James L. Quackenbush, for the respondent Albert Rochevot.
   Spring, J.:

This action is for specific performance to compel the enforcement of a written contract, and the dismissal was because the said agreement was invalid and if carried out would defeat the will of the testator.

George Rochevot, a wealthy brewer of Buffalo,' was the chief owner of the Lion Brewery in that city. At the time of his death .he owned 600 of the 1,000 shares which composed the capital stock of the corporation and the residue of this stock was owned by his wife and four of his children, each owning 80 shares. He died in 1887 leaving a last will and testament executed only three days before his death and which was duly admitted to probate' shortly thereafter. The thrift and sagacity which enabled liim to accumulate his large fortune of over one-half million dollars appear prominently in his will.

.He first gave to his wife Caroline “ the rents and profits and other income ” of his entire property during her natural life. After her death his property was to pass to his five children, to be equally divided among them. He next provided in the 4th subdivision of his will that if any of his children sold any of the shares of stock in said Lion Brewery before his death and without his written consent, “ or shall after my decease and during the lifetime of my wife, without the consent of my said wife and my other children, in writing, sell or dispose of any of the said stock, then he, she or they shall be disqualified thereby from entering the duties of trustee, .upon executor or executrix of this my last will and testament, and from acting as such trustee, executor or executrix, and his, her or their share-or interest -in my said estate shall terminate and the same shall revert to and form a part of my estate, to be divided equally among those of my children who are faithful to me and obedient to my wishes.”

He. nominated his wife and four of his children executors of his will. The remaining son was mentally incompetent, arid the testator made his executors “ trustees of the property, estate, share and interest of my son Gustave 0. Rochevot, and I give, devise and bequeath to them the share of iny son Gustave C. Rochevot in trust for him, they to continue as such trustees until my said son Gustave 0. Rochevot shall recover from his present mental ailment and become again competent to' conduct and manage'his own affairs when they may, if they deem it advisable, pay to him or deliver to him his share or interest; They shall in the meantime make proper and careful provision for his maintenance, support, care, safety and comfort.”-

He gave his executors authority “ to sell and convey or lease ” any of-the property, real or personal, and provided that they should “ servé without bonds,” and further directed that in case any difference should arise “ pertaining to the administration ” of his estate “ the majority shall rule.”

It is apparent that the testator in .the scheme for the distribution of his -property was controlled by two or three purposes, primarily, to insure a liberal income for his widow, to make.certain that his unfortunate son was properly cared for and his share kept in its integrity, to retain its value or be augmented with that of his other children, and, thirdly, to keep intact the brewery stock, which was evidently the pride of his business ventures.

The children did not work together harmoniously and sought, in violation of the project of the father, to divide the property and end the trusteeship for the son Gustave, whose property rights the father had so carefully interlinked with, those of his other, children.. On the 10th of April, 1900, barely three years after the death of Rocher vat, Sr., the widow and children, except the incompetent, entered into an agreement, the sweepingly destructive purpose of which, in hostility to the scheme of the testator, appears unmistakably in one of the recitals in. the early part of the agreement, reading as follows:

“Whereas, the parties to this agreement are desirous of determining the said life estate, created by the provisions of said will and the trusts created by said will, and to make a present distribution of the said estate between the parties entitled to the same on the terms and conditions hereinafter set forth.”

By this agreement two of the children, Oscar, a son, and Mrs. Beck, a daughter, agree to sell, convey and transfer to their mother . and Albert and Matilda for $160,000, all the property which they acquired from their father with two minor exceptions, including what they might receive from the estate of their incompetent brother. The consideration of .$160,000 was to be paid $45,000 in cash, $2,000 of which were in fact paid, and the remaining part of the purchase price in real estate in the following manner: Appraisers chosen as provided in the agreement were to appraise the value of each parcel of land and to complete said appraisal within fifty days, after which said Oscar and Mrs. Beck were to select such pieces as they may choose to the aggregate value of one hundred and fifteen thousand dollars ($115,000).” Conveyances were thereupon to he made by the respective parties to make effective the transfers, and each of the parlies was to execute releases as executors of the said will and as trustees of said Gustave thereunder, including, also, releases as directors, officers and stockholders of the Lion Brewery. It was further agreed that “ Caroline Rochevot may institute, at her own proper cost and expense, proceedings to procure and * procure her appointment as trustee of the person and estate of this said Gustave C. Rochevot.” This provision was further clinched by a covenant that the parties hereto agree that such proceedings may be taken as shall be necessary to discharge said trustees under said will and for the appointment of said Caroline Rochevot as trustee thereof, all expense of such proceedings, however, to be paid by the parties of the second part.”

. The appraisal was taken conformably to the agreement and the selection of the various tracts of land was made by the parties of the first part, but Mrs. Rochevot and her daughter declined to perform, alleging that they had been fraudulently induced to enter into the agreement, not supposing or realizing that the plaintiffs had the first right to make selections from the parcels .of land at their appraised value. A committee was appointed of said incompetent and objected to the performance of said agreement.

It is quite obvious if the agreement is carried out, the plan so carefully devised by the testator will be thwarted... It will terminate the life estate and the trusteeship created by the will and result in a severance of the property of the incompetent, all of which were contrary to the purposes inducing the making of the will.

By the Real Property Law (Laws of 1896, chap. 547) the trust was •revocable (§ 128) and imperative (§ 137), and the intention of the grantor or creator of the trust must be observed (§ 152). The parties to the action accepted the trust and have proceeded in the performance of its duties and may not now repudiate or disclaim the burdens which they have thus voluntarily undertaken. (Brennan v. Willson, 71 N. Y. 502.)

Even if the parties possess the power to make this agreement, the court will not compel the destruction of this trust, and certainly not against the protest of some of the trustees and of the direct representative of the eestui que trust and to aid a minority of the trustees to the detriment of the incompetent beneficiary. (Cuthbert v. Chauvet, 136 N. Y. 326; Oviatt v. Hopkins, 20 App. Div. 168.)

The testator created a trust by which the aggregate judgment of the trustees was to be directed. to its execution. By the plan evolved for the consummation of the agreement this joint action and liability and interest are to-be abrogated'and the widow alone is to be invested with the trusteeship to carry out the purposes of the testator with the trust property separated from that with which it was supposed to be inseparably united by him. The trustees if they deem it advisable ” may pay or deliver to the incompetent his share in cash when he becomes competent to “ manage his own affairs.” He vested this discretion in the trustees, not in the widow, and this joint proprietorship is not to be torn asunder because some •of the trustees desire it.

Again, the performance of this agreement affronts the fundamental law pertaining to the administration of trust estates, that a trustee is not permitted either directly or indirectly to purchase the trust property or to manipulate it for his own benefit. (Terwilliger v. Brown, 44 N. Y. 237; O’Donoghue v. Boies, 159 id. 87.)

Nor is'there any way to enforce this agreement specifically and leave the trust estate intact. The pith of the agreement is the termination of the trusteeship as created by the testator and the separation of the property so that a portion will be freed from the burden to the incompetent which' he imposed upon it. Eliminate those provisions and the agreement is incapable of recognition.

The trial court exercised its discretion by declining to enforce the agreement, and we are not disposed to interfere with its judgment, especially as we are convinced that it was exercised wisely..

The judgment should be affirmed, with the costs and disbursements of this appeal, in favor of the respondents Caroline Rochevot and Matilda A. Mesinger.

Adams, P. J., McLennan, Williams and Hiscock, JJ., concurred.

Judgment affirmed, with costs, in favor of the respondents Caroline Rochevot and Matilda A. Mesinger. 
      
      
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