
    
      In re Shipman’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    Executors and Administrators—Liee-Interest in Fund—Bond.
    Where testatrix clevises her entire estate to her husband for life, with remainder over to her children, it is improper for the surrogate, upon the executor’s accounting, to order him to take the estate as life-tenant, and give a bond to secure the remainder-man, and, in case he should decline to receive it, require him to give a similar bond as a condition of retaining it as executor, as no such condition is imposed on the executor either by law or by the will. Reversing 5 N. Y. Supp. 559.
    Appeal from so much of a decree made by the surrogate of the county of Hew York as requires the executor to give security as a condition of retaining the residuary estate. Eor surrogate’s opinion, see 5 H. Y. Supp. 559.
    Argued before Van Brunt, P J., and Daniels and Barrett, J J.
    
      Lewis L. Delafleld, for appellant. Meyer Butzel, for special guardian.
   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 andcsurvived 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 remainder-man. 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 remainder-man 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 delivered over to him, would be frustrated if Mr. Shipman were permitted to retain the estate as executor without security. The answer to this suggestion is that such was Mrs. Shipman’s will; and that, however desirous the courts maybe to afford special protection to theremainder-man, (especially when the latter is an infant,) they cannot effect that end by frustrating the lawful intention of the testatrix. She evidently liad implicit confidence in her husband: She always speaks of him as her “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 he 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 office, 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, (N. Y. 492; Smith v. Van Ostrand, 64 N. Y. 281; Bliven v. Seymour, 88 N. Y. 477. That duty is to convert the personal 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 doubless 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 to the 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 estate upon giving adequate security to the remainder-man. 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, intrusted 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 trustent 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, 18 N. E. Rep. 636. 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 there under 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 provision for security as in effect a conditional appointment as trustee. Judge Grqvbr’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; 1 Perry, Trusts, § 59; Ex parte Conybeare's Settlement, 1 Wkly. Rep. 458; and see In re Moke, 2 Redf. Sur. 430. In the case at bar there is, as we have seen, no trust relation other than that attached to every executorial office. Hor 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, authorizes 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 debts of the guardian ad litem, to be taxed and paid out of the estate.

Van Brunt, P. J., concurs.  