
    ESTATE OF MRS. SHIPMAN.
    N. Y. Supreme Court, First Department; General Term,
    
    May, 1889.
    [Reversing, in part, 22 Abb. N. C. 229.]
    
      Executor's duty to give security when he is life tenant.] Under a bequest for life to the person who is also executor, with a gift over on his death to others, (especially when the life tenant is the husband of testatrix, and the gift over to their children,) the executor is entitled to possession as such during his life; and the court cannot require him to give security or surrender possession.
    
    The rule that one cannot be trustee for himself does not preclude a testator from conferring executorial duties upon a beneficiary.
    Appeal from decree of the surrogate.
    The facts are stated in 22 Abb. A7. G. 289, 292, where the decision appealed from is reported.
    
      Lewis L. Delafield, for the executor, appellant.
    I. If the residuary estate, being personalty, is given to one person for life, with remainder over, and no active trust with reference to the property is vested in the executor, the life tenant may, if he so elect, take the physical custody of the fund during his lifetime upon giving security to indemnify the remainderman against loss. The theory upon which the life tenant is permitted to assume the custody of the fund in such a case is that inasmuch as the testator has not seen fit to create an active trust the life tenant will be spared the necessity of paying commissions to the executor for receiving and paying over the interest of the fund (Spear v. Tink ham, 2 Barb. Ch. 214; Covenhoven v. Shuler, 2 Paige, 132 ; Clark v. Clark, 8 Id. 160; Livingston v. Murray, 68 N. Y. 493; Bliven v. Seymour, 88 Id. 478; Williams v. Freeman, 98 Id. 584; DeRivas v. DeHerques, 12 N. Y. Weekly Dig. 87; aff’d, 85 N. Y. 645; Smith v. Van Ostrand, 64 
      Id. 278; Matter of Gillespie, 18 Abb. N. C. 41). But if, in such a case, the life tenant does not elect to take the fund upon giving security, then the executor must retain and preserve the corpus of the fund for those entitled in remainder, paying the income only to the life tenant. The duty of the executor, with regard to the estate, does not cease until the estate in remainder takes effect in possession. The fund remains in his possession until the event, upon which the right of the remainderman to the possession of the estate is limited, takes effect. Until that time the residuary fund is-an unadministered asset in the hands of the executor. Until then he cannot pay it to the absolute owner—the ultimate legatee. In the meantime the executor holds the estate as-executor and not as trustee (Smith v. Van Ostrand, 64 N, Y. 281); Livingston v. Murray, 68 Id. 485; Bliven v. Seymour, 88 Id. 469; Montford v. Montford, 24 Hun. 120; Haven v. Haven, 1 Redf. 374; Matter of Gillespie, 18 Abb. N. C. 41; Spear v. Tinkham, 2 Barb. Ch. 214; Clark v. Clark, 8 Paige, 160; Marlett v. Marlett, 14 Hun, 313).
    II. The alleged principle that "the same person should! not be both trustee and cestui que trust has no application to the case at bar (Lew. on Trusts, 8th Engl. ed. 665; Perry on Trusts, § 59; Godefroi’s Law of Trustees, 211; Matter of Moke, 2 Redf. 430; Moke v. Norrie, 14 Hun. 128), The courts have repeatedly sustained trusts where the trust was committed to several persons for the benefit of one of their own number (Wetmore v. Truslow, 51 N. Y, 338; Amory v. Lord, 9 Id. 403; Rogers v. Rogers, imfra). In England the courts will appoint the cestui que trust as trustee when special reason is shown (Clutton, 17 Jurist, 988 ; Conybeare’s Settlement, 1 Weehly Rep. 458; Wetmore v. Truslow, 51 N. Y. 343; Moke v. Norrie, supra; Bunby v. Bundy, 38 N. Y. 410).
    III. The surrogate has no jurisdiction either to compel the executor to give security, or to direct him to deposit the residuary estate with the city chamberlain.
    
      IY. The decree made by the surrogate is in violation of the wishes of the testatrix as derived from her will.
    
      Meyer Butzel, special guardian, respondent.
    I. The rule is well settled that the same person cannot be trustee and cestui que trust. The court may take upon itself the execution of the trust so far as it ought not be executed by said trustee and beneficiary. This rule is based upon grounds of public policy (Rogers v. Rogers, 111 N. 7. 228; Bundy v. Bundy, 38 2d. 417).
    II. An ’ executor is in effect a trustee by virtue of his office as executor, and his control and possession of the funds of the estate. The executor always takes the legal title to the personal property of the testator as trustee (Bowers v. Smith, 10 Paige, 193,199; Tiffany and Bullard on Trusts, p. 483).
    III. The rule which requires the life tenant on receipt of the corpus of the estate to give security for its delivery to the remainderman at the termination of the particular estate is intended for the protection of the remainderman (Spear v. Tinkham, 2 Barb. Ch. 211: Clark v. Clark, 8 Paige, 152; Covenhoven v. Shuler, 2 Id. 122). To permit the person entitled as life tenant to hold the corpus of tlieestate in his capacity as executor without security would entirely frustrate this rule.
    IY. The appellant is not in a position to complain, inasmuch as the decree appealed from is most favorable to him. The learned surrogate had power to remove the appellant-from his position as executor and trustee by reason of personal disqualification, within the rule laid down in Rogers v. Rogers (supra) and Bundy v. Bundy (supra), and to appoint a new trustee (Code of Civ. Pro. § 2685 and § 2817-2818),
    
      
       s. f., Stone v. McEckron (Conn. 1889), 17 Atl. Rep. 852, 355.
    
   By the Court.—Barrett, J.

Mrs. Shipman died in 1882 leaving a will which contained alternative provisions. By the fifteenth clause of this will she devised her entire residuary estate to her husband, Edgar J. Shipman, “ absolutely.” By the sixteenth clause she revoked the bequests of" the fifteenth, should children be thereafter born to and survive her. In the latter event, she devised her entire residuary estate to her husband “ during his life, to be divided equally between our surviving children after his death';” and she appointed her husband as executor.

One child was subsequently born to and survived Mrs. Shipman. Mr. Shipman is thus entitled to the residuary-estate for life and the remainder is vested in the child. Upon the judicial settlement of Mr. Shipman’s account as executor the surrogate authorized him to pay over to himself, as life tenant, the residuary estate, upon his giving security to protect the remainderman. This direction is acquiesced in by Mr. Shipman. But the surrogate further decreed -that in case Mr. Shipman should individually decline to receive the corpus of the estate upon the condition as to security, he should then as a condition of retaining it as executor, give a similar bond, and in default of giving such bond that he should deposit the entire fund with the chamberlain, the latter official then “ to invest the same and pay the income to said life tenant,” and the principal of said fund to the remainderman upon the termination of the life estate.

From this part of the decree. Mr. Shipman appeals. It seems quite plain to us that this part of 'the decree was without authority. The surrogate thereby attached to the executorial office a condition imposed neither by law nor by the testatrix. The surrogate’s power is limited to the revocation of the letters testamentary for one of the causes specified in section 2685 of the Code of Civil Procedure. It is not pretended that Mr. Shipman’s case comes within any of these causes. He is admitted to be a gentleman of probity and of ample responsibility ; and there is no suggestion of misconduct or of personal disqualification. The decree is founded solely upon the fact that the life estate and the executorial office are united in the same person, and that the principle which requires security from the life tenant, when the corpus of the estate is deliveied over to him, would he frustrated if Mr. Shipman were, permitted to retain the estate as executor without security. The answer to this ■suggestion is that such was Mrs. Shipmans will; and that, however desirous the courts may be to afford special protection to the remainderman (especially when the latter is an infant), they cannot effect that end by frustrating the lawful intention of the testatrix. She evidently had implicit confidence in her husband. She always speaks of him as her 11 dear husband.” She gave him her- entire estate absolutely in case she died childless. In the alternative disposition -she uses the simplest language—words suggestive of complete trust. She undoubtedly acted upon the not unnatural idea that lie would treat his own children honestly. A provision in such a will appointing her “ dear husband ” executor upon his giving a bond to secure the children would have been most surprising and incongruous. The surrogate fell into an error in supposing that the executorial function will cease upon the settlement of the accounts and the entry of the decree thereon ; and that thereafter the executor will hold the estate as a trustee under the will. There is, of course, a species of trust attached to every executorial officer and, as was said by the chancellor in Bowers v. Smith (10 Paige, 199), “the executor always takes the legal title to the personal estate of the testator as a trustee.” That meant nothing more than that he was within ,the jurisdiction of the court of chancery. But there is a wide difference between the trust which is attached to the executorial office .and an active trust founded upon the creation of a trust -estate. Here there is no trust estate, no active trust and no testamentary trustee. The duty of the executor as such continues until the falling in of the life estate.

This is the settled rule as laid down in a long line of cases (Spear v. Tinkham, 2 Barb. Ch. 214; Covenhoven v. Shuler, 2 Paige, 132; Livingston v. Murray, 68 N. Y. 492; Smith v. Van Ostrand, 64 Id. 281; Bliven v. Seymour, 88 Id. 477). That duty is to convert the personal1 estate into money, invest it in permanent securities and pay over the income to the life tenant. This duty has been unconditionally imposed upon the present executor by the testatrix, and for that purpose he has been put in lawful possession of the estate. He can neither be deprived of that possession, nor prevented from performing that duty so long-as he conducts himself with propriety and violates no provision of law. The error complained of doubtless grew out of a supposed analogy between the security ordinarily required of a life tenant and the security required by the present decree. It will be observed, however, that the life-tenant is not absolutely entitled to the possession of the estate, and that the intention of the testator limits him tothe enjoyment of the income. To effectuate that enjoyment in the most advantageous manner and at the least expense to-himself, he is permitted to take the corpus of the estatejipon giving adequate security to the remainderman. If he is-unable to furnish such security, the executor must retain the principal and pay over to him the income. Thus the delivery of the principal to the life tenant is in the nature of a favor to which a court of equity attaches the just condition of adequate security. Here, however, the executor asks no favor. The corpus of the estate is in his hands, entrusted to him by the testatrix, and his position with regard to it is the same in principle as if the life estate were-vested in another person.

The cases with regard to trustees and cestuis que trust are entirely inapplicable. They proceed upon the_principle that a beneficiary should not be permitted to act as trustee for himself where the exercise of discretion or judgment is-called for; as, where the income of a trust fund is to be applied to the maintenance of a particular beneficiary, with discretion in the trustee, in case the income prove insufficient, to apply part of the principal. There, and in similar exercises of judgment, it would be manifestly improper that-the trustee and beneficiary should be united in the same-person. Such is the principle of Bundy v. Bundy (38 N. Y. 410) and of Rogers v. Rogers (111 N. Y. 228). In both of these cases there were trust estates. In the former the-court required the executors to give security; not, however, as executors, but as trustees. The duty thereunder consideration was not attached to the executorial office, and as-no trustee—to perform the duty—was named in the will, the court regarded the provisions for security as in effect a conditional appointment as trustee. Judge Grover’s language makes this entirely clear : The judgment provides that the executors, upon giving proper security, shall continue-in charge of the fund. In this there is no error. The will not having designated a trustee for this purpose, it was competent for the court to appoint a trustee. This may be-regarded as such appointment/’

In Rogers v. Rogers, the court held that the fact that one-of several testamentary trustees is a beneficiary did not incapacitate him from acting as trustee. He was simply disqualified from sitting in judgment upon his own rights- or privileges. In the latter respect, her co-trustees could exercise the control and judgment improper for him, and in case the other trustees declined to act, the court could either supply their place or take upon itself the execution of the-trust so far as it ought not to be executed by the trustee and beneficiary.

These cases are in entire harmony with the general principle that although the court, when called upon to appoint a trustee, will not ordinarily appoint as such a cestui que trust, yet the latter is not absolutely, and under all circumstances, excluded from occupying the trustee relation for his own benefit (Moke v. Norrie, 14 Hun, 128; Perry on Trusts, § 59; Exp. Conybeare’s Settlement, 1 Weekly Rep. 458; and see In re Moke, 2 Redf. 430).

In the case at bar, there is, as we have seen, no trust relation other than that attached to every executorial office. Nor is there any provision in the will calling for the exercise ■of judgment or discretion. The executor’s duties here are such as the law ordinarily imposes upon executors. They are indeed unusually simple. He is called upon to invest the estate in permanent securities and to pay over to himself the income for life—when the principal goes to his son. There is no rule of law or requirement of public policy which, under such circumstances, and in the absence, as ■matter of fact, of any necessity, authorize the court to require security from the executor and in case of non-compliance to compel the deposit of the estate with a public ■official, thus in effect removing the executor and frustrating the will of the testatrix.

The part of the decree appealed from should be reversed and a decree made in accordance with the views herein ■expressed, with costs to the executor to be paid from the estate ; and also the costs and disbursements of the guardian •ad litem to be taxed and paid out of the estate. 
      
       Present, Chas. H. Van Brunt, P. J., and Charles Daniels and Geo. C. Barrett, JJ.
     