
    Linnie M. Davis and Others, Respondents, v. Charles L. C. Kerr, as Executor, etc., of A. Smith Ring, Deceased, Appellant.
    
      Will—the words “widow of my said son" refers to the fs'st wife — executors, on an ' accounting as such, changing themselves as trustees with a trust fund,— liability oj a, Surviving trustee.
    
    In an action by the children of Hyatt and Zelia B. Sinclair to recover the amount of a trust fund, it appeared that the fund was created by the will of Catharine E. Sinclair, which gave to A. Smith King and Cornelia S/ Fenton the sum of $4,000 upon a trust, to keep the same invested during the life of her son Hyatt . Sinclair and his wife, and of the survivor of them; to pay the income to Hyatt Sinclair during life, and in case he died leaving a wife.surviving, to pay the income “to the widow of my said son for the benefit of herself and her children as long as she shall live and remain the widow of my said son; at and upon the death or marriage of the widow of my said son;(whichever shall first happen), or upon the' death of my said son, if his wife shall not survive him, I give and bequeath the said principal sum of $4,000 to the children then living of my said son Hyatt Sinclair, to be paid to them in equal shares.” At the time when this will was made and proved Zelia B. Sinclair was the wife of Hyatt" • Sinclair; they were afterwards divorced, and Hyatt Sinclair subsequently married Sarah. J. Haight, and subsequently died leaving both wives surviving .-.him. Zelia B. Sinclair, A. Smith Ring and Cornelia S. Fenton are all dead; .HéZcZ,. that by the use of the word “widow ” in her will Catharine E. Sinclair intended to indicate Zelia B. Sinclair, and did not contemplate the widow of ,a second marriage of her son;
    That the fact that any other construction would invalidate a provision of the will, which would be good if it applied only to the first wife, was an additional reason 'for' adopting the latter construction of the words “ widow of my said son.” ■ . ■ , • • ■ ■
    Where trustees, who are also executors of a will, present an account in the Surrogate’s Court in which' they credit themselves' as executors with a sum. as invested in their name as trustees of certain beneficiaries, this is sufficient proof of the receipt and of the joint possession of the trust moneys'at that time by both trustees. .
    Where one of two trustees dies it will be presumed that the survivor took possession of the funds, and if the last trustee dies his executor must respond for the amount of the fund.
    How far a trustee named in a will as a substitute, in case of their death, for other trustees, is- a necessary party, .to an action in reference to the trust fund's after the death of the original trustee, who lived until the term of the trust expired, considered. _ .'. ' ' • ...
    Appeal by the defendant, Charles L. C. Kerr, as executor, etc., of A. Smith Ring, deceased, from a judgment of the Supreme ■Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 18th day of September, 1895, upon the decision of the court rendered after a trial at the Orange Special Term.
    This action was brought by the plaintiffs as cestuis que trust to recover from the executor of a surviving trustee the amount of the trust fund.
    
      M. II. HirscKberg and E. A. Brewster, for the appellant. ■
    
      Daniel S. Bemsen, for the respondents.
   Willard Bartlett, J.:

The controversy in this case arises out of a trust of $4,000, established by the will of Catharine E. Sinclair. In order to understand the questions to be considered it is essential to set out the trust clause- in full. It is in these words:

“I give and bequeath to A. Smith Ring and Cornelia S. Fenton the sum of ■ four thousand dollars upon the following trusts, viz.-: To invest the same and keep the same invested upon bond and mortgage upon real estate during the lives of my son, Hyatt Sinclair, and his wife, and of the survivor of them, and to pay over the interest and income thereof, as they shall receive the same, to my said son, Hyatt Sinclair, during his natural life for the support of himself and his family; and in case said Hyatt Sinclair shall die, leaving his wife surviving him, then and from that time I direct the said trustees to pay the interest accruing from said fund to the widow of my said son, for the benefit of herself and her children, as long as she shall live and remain the widow of my said son; at and upon the death or marriage of the widow of my said son (whichever shall first happen), or upon the death of my said son, if his wife shall not survive him, I give and bequeath the said principal sum of four thousand dollars to the children then living of my said son, Hyatt Sinclair, to be paid to them in equal shares upon their respectively attaining the age of twenty-one years; and in case no child of my said son, Hyatt Sinclair, shall be living at the time above appointed for the distribution -of the said principal sum, then .and in such case I give the-said principal -sum of four, thousand dol■lars to my two daughters, Cornelia S. Kenton and Kitty R. Wood, to be equally divided between them; and in case either of my said ‘children be then dead without leaving children living, then the share of the one so dying shall be paid to my surviving ■ child or Children.”

Catharine E. Sinclair, the testatrix, died in August, 1868. The executors, A. Smith Ring and Cornelia S. Fenton, qualified' in the following September.

At the time when the will was made and proved the wife of Hyatt Sinclair was Zelia B. Sinclair. They were divorced on March 22, 1879. Hyatt Sinclair subsequently married Sarah J. .Haight, and died on April 7, 1888, leaving her surviving him. She is still living. His first wife, Zelia B. Sinclair, also survived him, but is how deceased, having died on January 10, 1890.

The plaintiffs .are the children of Hyatt and Zelia B. Sinclair.

. Cornelia S. Fenton and A. Smith Ring, "the trustees of the $4,000 fund, are both dead:

Mrs. Fenton died first. The defendant is the executor óf A. ’Smith Ring and is sued for "the amount of the trust fund', which his decedent, as sole surviving trustee, is alleged to have received under the will of Catharine Sinclair.

The first objection urged against 'the right of the plaintiffs to recover is that the testatrix died intestate as to the $4,000 trust fund in question. .

The plaintiffs sue as beneficiaries Under the will, ■claiming to be entitled to' the $4,000 in remainder.

The appellant contends that they are not beneficiaries under the will at all. This was not his original position. In the brief used át the time of the oral argument it Was expressly conceded that the plaintiffs were to take the moiiey by/the terms of the will on the death of the widow of Hvatt Sinclair, and the contention was that the Widow intended was the second instead of the first Mrs. Hyatt 'Sinclair,' and as the second Mrs. Hyatt Sinclair was still alive, the time of payment had not arrived. In the additional points for the appellant, submitted subsequently by leave of the court,' his modified proposition appears to be that the time for payment to the plaintiffs as beneficiaries of the $4,000 trust fund will never arrive,, although they may'ultimately receive some part of it when it comes to be distributed as a portion of Mrs. Sinclair’s property which she ctid not dispose of by her will.

The argument by which it is sought to reach this result may be briefly stated thus: Conceding that the word “ wife,” wherever used in the trust clause, means the person who was the wife of Hyatt Sinclair at the time testatrix died, nevertheless the word “ widow ” in the sentence beginning “ at and upon the death or marriage of the widow of my said son” means any widow ; if this be so (the argument continues) the limitation to the children to take effect on the death of the widow ivas void under the rule laid down in Schettler v. Smith (41 N. Y. 328), while the alternative limitation “ or upon the death of my said son, if his wife shall not survive him,” never took effect-because the wife Zelia did survive her husband. In this ingenious manner the learned counsel for the appellant have worked out a case of intestacy as to the $4,000 fund.

But the vice of the argument lies in the assumption as to the meaning of the word “ Avidow ” in the Avill. In Schettler v. Smith (supra) the direction in the will was to convey “■ on her decease, if he leave a widow, or if he leave no widow, then on his decease,” referring to a son of the testator. This provision, in connection with other clauses of the instrument, Avas construed to refer to any Avife the son might subsequently marry, though possibly not in being at the time of the testator’s death, and hence the clause was adjudged to be void. The words “ a widow' ” and “ no widow,” however, are much more general in their scope than the expression “the widow of my>said son” in the will before ns here. Furthermore, in the Schettler case another portion of the Avill was mentioned in the opinion of Judge Grover as indicating an intention to make the direction to convey dependent upon the death of any person who might become the son’s widow. This was a clause making provision for the wife of a son not yet married. There is nothing of the kind in the will of Mrs. Sinclair from which it can be inferred that she had in mind any other person than her son’s first wife when she referred to his widow. Taking the whole trust clause together, it seems to me clear that whether she spoke of the wife or the widow of her son she meant Zelia B. Sinclair, who was his wife at the time the will Avas made. There is nothing in the language of the will anywhere to suggest that the testatrix ever contemplated that her son might enter into any other marriage than that which then existed. To construe the word “ widow ” as applicable to any widow is to • invalidate a provision. of the will which is perfectly good if it applies ■ only to the first wife; and this of itself would seem to be reason enough for adopting the latter-interpretation.

An English case, cited in behalf of the appellant, is The Matter of Tyne's Trust (L. R. [8 Eq. Cas.] 65). There the testator bequeathed a fund to trustees to invest and pay the dividends to-his son for life, and after his son’s death to divide the principal equally between the wife of his said son, in case she should happen to survive him; and all his son’s lawful children. At the date of the will the son had a wife and child: The wife died and the son married a second time. This second' wife survived him, and the-question was whether she was entitled to share in the principal of the trust fundi Vice-Chancellor Malins held that .she was so entitled, declaring that there was quite as much to be said in favor of-the. intention being to benefit a future as an existing wife. But I do not thinlc this decision should have much' weight as an authority. The Master of the Rolls (Sir Geobge Jessel)" declined to follow it-in Firth v. Fielden (22 Wkly. Rep. 622), where, under a similar testamentary provision, he held tliat the gift over was confined to the wife, who was alive at the date of the will, and did not go to a second wife who survived the original beneficiary. Furthermore, the' vice-chancellor, in his opinion in Tyne's ease, virtually admitted that his conclusion was the merest guess work when he wrote, “ It is impossible to say what the testator would have done if he had. been asked whether he intended any future wife to take.”

■ The second objection of the appellant -to the right of the plaintiffs-to maintain this action is that, under the fourth article of the will of Mrs. Sinclair, her son-in-law, John B. J. Fenton, was appointed, trustee to succeed Mr. Ring and Mrs. Fenton, in the event of their death, and, as both have died, Mr. Fenton has become the sole trustee, and no recovery can be had except in a suit to which he shall be a-party. A sufficient answer to this point is that the trust under the-first article having terminated, as has been shown, upon the death of Zelia B. Sinclair, there was no longer any trust for á new trustee, to discharge under that clause, and to that extent the' appointment of Mr. Fenton was inoperative.

The third point upon, which the appellant relies is that the evidence was insufficient to charge his decedent, A. Smith Ring, with liability for any portion of the trust fund of $4,000. The plaintiffs proved that on October 28, 1869, an account of the proceedings of A. Smith Ring and Cornelia S. Fenton, as executors of the will of ■Catharine E. Sinclair, was presented to the Surrogate’s Court in Orange county, in which account the executors, over their signatures and under oath, credited themselves with $4,000, “ invested in ■name of A. Smith Ring and Cornelia S. Fenton, trustees of Hyatt 'Sinclair and his wife.” On the same day the surrogate made a decree settling their account and allowing them a credit of $4,000 ’for this investment. There was also put in evidence a mortgage by 'one Faulkner to A. Smith Ring and Cornelia S. Fenton, trustees of Hyatt Sinclair, to secure the payment of $1,500. This mortgage was dated October 25, 1869, and recorded October 26, 1869.

- Here was ample proof to warrant the inference that the trustees had received' the trust fund. -They acknowledged its receipt by their sworn account, and the mortgage indipated where $1,500 of the money had been, invested.

’■ As opposed to this there is the testimony of John B. J. Fenton, the husband of Cornelia S. Fenton, one of the trustees. He was an attorney and appears to have acted for his wife and Hr. Ring in reference to the estate of Mrs. Sinclair. He prepared the account which was presented to the Surrogate’s Court. He swears that when it was made out and filed neither the trust .fund of $4,000 nor any part of it was invested in the names of the trustees under the will; that the allegation in the account to that effect was untrue ; and that A. Smith Ring never had in his possession or under his control the said $4,000, or any part of it, or any security for it. 'The same witness testifies that he took the account to A. Smith Ring, who signed it without reading it, though he probably asked whether the papers were right. He also thinks it probable that the jv/rat was signed by the then county judge, to whom the witness took the papers, without Mr. Ring having gone before that magistrate. So much for Mr. Ring’s action in regard to the trust fund.

To explain the action of the other trustee, the wife of the witness, Mr. Fenton said that the greater part of the $4,000 had been paid -to Hyatt Sinclair before the testatrix died and at her request; that Hyatt Sinclair felt unpleasantly in regard, to his mother’s will; that the wife- of the' witness wanted to pursue the same course as though the executors actually had the $4,000 to invest, and that hence it came to be put into the account.

I do not think the trial judge was bound to believe the statements of this attorney, as against the evidence furnished by the documents already mentioned. The witness admitted that he had been engaged in a deceitful course of conduct, by putting upon the records of the Surrogate’s Court statements prepared by. himself, which he says he knew to be untrue, and which purported to be verified, although his recollection now is that the certificate that they had been sworn to was also false. These admissions were enough to discredit him. Ho explanation was offered of the taking by the trustees of the Faulkner mortgage of $1,500, in which they were expressly designated as trustees of Hyatt Sinclair. It did appear that in the early part of 18.70 they had assigned this mortgage ■ to one William E. Peck, but why it was thus assigned or for what consideration was not disclosed. It is extremely unlikely that this matter would have been allowed to go unexplained, unless it were true that the mortgage represented the investment of a part of the trust fund.

Indeed, .the testimony of Mr. Fenton tended to prove rather than disprove Mr. Ring’s liability for the loss of the $4,000. It indicated that he. did not exercise any care or diligence whatever in respect to the joint trust, but delivered over the whole management to others, with complete indifference to the interest of the beneficiaries. This mad'e him responsible to them for the loss of the fund. (Earle v. Earle, 93 N. Y. 104, 113.) Even if Mrs. Fenton did not have $4,000 with which to constitute the trust fund,. as Mr. Fenton declares was the case, the husband admits that he owed the Sinclair estate $5,000 at the time, and an effort on the part of Mr. Ring to collect that debt and thus provide for the trust might well have been successful,, if he had attended to his duties as -trustee', instead of grossly neglecting them. It is true Mr. Fenton says his own financial circumstances were such that, the amount could not. have been collected from him by legal proceedings; but this statement is qualified by the fact that he appears, on March 25, 1870, with his wife as the co-grantee, in a deed of Hewburgh property ¿ where the consideration recited is $17,000, subject to a mortgage of $4,000. This does not look like insolvency.

. B.ut, without regard to this view of the evidence given by Mr. Fenton, I think the liability of Mr. Bing was clearly made out. The account in the Surrogate’s Court was proof of the receipt and joint possession of the trust money by both trustees. (Glacius v. Fogel, 88 N. Y. 434, 443.) Upon the death of one of these trustees (Mrs. Fenton) it was the duty of the survivor (Mr. Bing) to take sole possession of the fund, and the presumption is that he performed his duty and did so, in which event his executor must respond for the amount.

The result of this examination of the case is the conclusion that it was properly disposed of .on the merits and without legal error in the court below. I can see no reason, however, why the defendant should not be allowed the trustee’s commissions, to be deducted from the amount of the judgment. With this modification, I am in favor of affirmance.

All concurred, except Brown, P. J., not. sitting.

Judgment modified so as to allow to the appellant the trustee’s commissions on the fund, and so modified, affirmed, without costs.  