
    Moorehouse v. Hutchinson.
    
      (Supreme Court, Special Term,, New York County,
    
    
      Filed July 14, 1888.)
    
    Will—Construction or—Trust—When void.
    The testator, by the second clause of his will, gave all his property to his wife during her life, and after her death it was to be equally divided between his five children, three sons and two daughters. In the seventh clause, the wife was directed, by conveyance to take effect after her death, to convey “ the interest of my two daughters, devised to them in this will, to Alcander Hutchinson, in trust, for their sole and separate use.” The wife died in 1887, having long prior thereto executed a deed" under the will to Alcander Hutchinson. Held, that the trust contained in the seventh paragraph is passive and, therefore, void.
    
      Oliver J. Wells, for pl’ff; Henry C. Butler, for def’t.
   Lawrence, J.

I do not regard the decision of the general term upon the appeal taken by Mary Ann Hutchinson, the executrix, from the decree of the surrogate revoking the letters testamentary issued to her, and removing her as trustee, as precluding the plaintiff in this action from questioning the validity of the trust contained in the seventh clause of the will of Hiram Hutchinson, deceased.

There are several trusts contained in that will, either one of which would be sufficient to support the reasoning upon which the determination of the general term proceeded. That decision must be regarded as establishing that Mrs. Hutchinson, under said will, became a trustee, and that, therefore, in a proper case it was within the power of the surrogate to remove her, and-also as establishing that such case had been made out before the surrogate. No expression of opinion is given as to the force or effect of the different trusts, nor as to their character, whether active or passive.

» The second and seventh paragraphs of the will are as follows:

Second. I bequeath and devise all of my property, real and personal, to my wife, Mary Ann Hutchinson, for the term “ of her natural life, and after her death to be equally divided [¡between my children, viz.: Alcander Hutchinson, Sarah Elizabeth Southgate, wife of the Et. Eev. Bishop Southgate, Mary Frances Moorehouse, Hiram Hutchinson, Jr., and Charles Louis Eichard Hutchinson, in such proportion, as taking into account the sums already paid or advanced to them, or hereafter advanced to them under the provisions of this will, shall give them equal shares. Nevertheless, and always provided that the bequest and devise of the said property for the term of her natural life to the said Mary Ann Hutchinson, is intended to be and shall operate as a trust, for the uses and purposes hereinafter declared and that the trusts hereinafter created shall be a charge both upon the incomes of the property and on the body of the estate herein conveyed, both real and personal, and of every kind and description.

Seventh. In trust that ^ the said Mary Ann Hutchinson shall “by proper form of conveyance executed to take effect on her death, convey the interest of my two daughters devised to them under this will, to Alcander Hutchinson, in trust, for their sole and separate use. Also, conveying- and setting aside in like manner for their separate use any sums of money devised to them from my estate by payments, gifts or appropriations, made to or for them, by the said Mary Ann Hutchinson after my death, from the incomes accruing to her from her life estate.”

It is quite apparent from the provisions contained in the second paragraph above referred to, and also from the provisions of the eighth paragraph of the will, that it was the intention of the testator, that upon the death of Mrs. Hutchinson, the testator’s estate should be distributed equally, and that his children should be made “equal each one to the other.” (See eighth paragraph of the will. ) Mrs. Hutchinson died on the 10th of March, 1887, having long prior thereto, pursuant to the directions of the seventh clause of the will, executed a deed to Alcander Hutchinson of the share or interest “ derived or devised ” under the will to the plaintiff in this action. The plaintiff now claims that the trust contained in the seventh paragraph of the will is passive, and therefore void; that she is entitled to a judgment against the said defendant to that effect, and that he account for, deliver and convey all the property held by him, as such alleged trustee, together with the accumulations thereof.

It was long ago settled that a femme covert with respect to her separate estate is to be regarded in a court of equity as a femme sole, and that she might dispose of her property without the consent or concurrence of her trustee, unless specially restrained by the instrument under which she acquired her separate estate. Jaques v. Methodist Episcopal Church, 17 Johns., 548; see also Jervoise v. Duke of Northumberland, 1 Jacobs & Walker, 539 and 555; 2 Story Eq. Juris., section 979.

It was also held that where the absolute beneficial interest in the trust was given to the separate use of a married woman, without any restriction or direction as to the mode •of possession or enjoyment, or in such manner that the statute of uses would execute the use or title in her, if it was real estate she would be entitled to call upon the trustees for an immediate conveyance or transfer of the legal title to her. See Perry on Trusts, § 667, vol. 2 (2d ed., 362), and cases cited. See also Tiffany & Bullard on Trusts, etc., 686.

In Rawsom v. Lampman (1 Seld., 456), it was held that where a conveyance of land is made to one person in trust for the use and benefit of another, his or her heirs and assigns, without limitation, no estate or interest vests in the trustees, but the entire estate, legal and equitable, vests m the person to.whose use the conveyance is made, subject, however, to such conditions as would have attached to the legal estate, had the title vested in the trustee, according to the terms of the deed The court cited the 46th and 47th sections of the Revised Statutes of Uses and Trusts. That case was approved in Fisher v. Hall (41 N. Y., 424), and so far as I have been able to discover, it has never been questioned as a correct exposition of the law. See also Wood-gate v. Fleet, 64 N. Y., 566; Verdin v. Slocum, 71 id., 345. In that case the will provided as follows: “I direct my said trustees to permit and suffer my son, William B. Slocum, to have, receive and take the rents, issues and profits for the term of his natural life, and after his decease, I give, devise and bequeath the same part or share to the heirs at law of my said son.”

It was held that the trust so attempted to be created was a passive one and was invalid, and that the son took a life estate, upon which a judgment against him was a lien. See also Syracuse Savings Bank v. Holden, 105 N. Y., 415; 8 N. Y. State Rep., 29; Helck v. Reinheimer, 105 id., 470;. 8 N. Y. State Rep., 73.

Under the seventh paragraph of the will, the grantee, Alcander Hutchinson, has no power to do anything. He is not to receive the rents, issues or profits of the share intended for Mrs. Moorehouse, nor of that of her sister. He is not to apply them to their use or maintenance.

I cannot but conclude, therefore, that the alleged trust created in the seventh clause of the will is a mere passive-trust, and therefore void.

The cases cited by the learned counsel for the defendant-do not contain anything adverse to the views expressed in the cases heretofore referred to.

In Ward v. Ward (105 N. Y., 68; 6 N. Y. State Rep., 798), duties were imposed upon the executors as trustees, which made the trust active and not passive.

In Donovan v. Vandemark (78 N. Y., 244), it was held that it was not necessary, under the statute, in order to create a valid trust, that the trust should be stated in the very words of the statute. In that case all the testator’s real and personal estate was given in trust for the necessary support- and maintenance of the testator’s son during his natural life, and, after the son’s death, the estate was devised and bequeathed to the children of the son. The executor was. also authorized to sell certain of the real estate. The court there held that the will gave to the trustee directly, or inferentially, power to manage the estate and receive the rents and profits, and apply them, according to his judgment, in the support and maintenance of the son, and that, therefore, a valid trust was created, and a legal title vested in the-trustee. No such feature exists in this case.

Alcander Hutchinson is not required or authorized to receive the rents and profits of the property conveyed to him, nor is he to apply them, or hold them, for the support or-maintenance of the plaintiff, or to any one for her benefit. See case last cited, at p. 247.

Morse v. Morse (85 N. Y., 53), was a case directly within the provisions of the statute, the trustees being directed to annually pay the interest of one-sixth of the residuary estate-to the son of the testator, in whose behalf the trust was. created. The same remark applies to the case of Moore v. Hegeman (72 N. Y., 376), where the will directed that a specific sum out of the rents, issues and profits of each share of the estate, during the minority of the child for whose benefit it was held, “shall be applied to his or her education, support, etc.,” the court holding that the words “applied ’ and “paid over,” as used, were substantial equivalents, and that the trust was within the provision of the Statute of Uses and Trusts, relating to express trusts. 1 Rev. Stat., 730; 72 N. Y., 376.

In the view above taken, it is entirely immaterial whether the testator intended to use the word “ derived” in the seventh paragraph of the will, or whether, as the plaintiff contends, that word was by a clerical error used instead of “devised.” Either word is sufficiently descriptive of the interest of his daughters in his estate, which the testator directed his wife to convey to his son Alcander for the sole and separate use of each of the daughters.

On the authorities above cited, I am of the opinion that the plaintiff in this case is entitled to the relief for which she prays, and judgment will be rendered accordingly. Findings will be settled on two days’ notice.  