Opinion
July 6, 1922.
Fred A. Bratt, for the appellant.
Dawes, Abbott Littlefield [ Hamilton M. Dawes of counsel], for the respondents Cobb.
Edgar Hull [ John E. Sawyer and Erskine C. Rogers of counsel], for the respondent Yates.
In the construction of wills each case must be determined on its own facts. We must find the intention of the testator. The clause in the will out of which the present litigation has arisen reads as follows:
" Third. I give and bequeath to Angeline M. Cobb, wife of A.H. Cobb, Ten thousand dollars to be placed on interest and the annual interest thereupon to be paid said Angeline M. Cobb during her natural life, and at her decease, the said Ten thousand dollars with accrued interest thereon, to be given to her son, Frederick D. Cobb when of age — but if the said Frederick D. Cobb should not survive his mother, or arrive at the age of twenty-one years, then and in that case the said ten thousand dollars shall revert to my estate at the death of said Angeline."
By this provision of the will the following rights and interests were created in the fund: (1) The enjoyment of the income from the same by Angeline M. Cobb for and during the term of her natural life; (2) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb and if he be under the age of twenty-one years at the time, then the income from the fund to be accumulated for his benefit during his minority and the fund with the accumulation thereon to be paid to him upon his reaching majority providing he lives so long; (3) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb but thereafter he should die before reaching his majority, then the fund with the accumulation thereon at the date of his death to revert to the estate of the testator; (4) upon the death of Angeline M. Cobb, if she be survived by Frederick D. Cobb and if he be over the age of twenty-one years at the time, the fund to go to him absolutely; (5) upon the death of Angeline M. Cobb, if she has been predeceased by Frederick D. Cobb, the fund to revert to the estate of the testator.
Angeline M. Cobb, the life beneficiary, is still living. Frederick D.H. Cobb, her son, died February 11, 1914, being at the time of his death over the age of twenty-one years. The trial court has erroneously held that the fund in question became the property of Frederick D.H. Cobb on his arriving at the age of twenty-one years, subject only to the life estate of his mother and that as the fund is now in the possession of the representatives of his estate it is where it rightfully belongs. This holding ignores the clause in the will — "but if the said Frederick D. Cobb should not survive his mother * * * then and in that case the said ten thousand dollars shall revert to my estate at the death of said Angeline." Under the will as we have construed it whatever interest Frederick D. Cobb may have had prior to his death was thereby divested, leaving the fund the property of the residuary legatees of the estate, subject to the life estate of Angeline M. Cobb. The remaindermen are the nephews and nieces of the testator, share and share alike, of whom the plaintiff is one and who are made the residuary legatees under the will.
The clause of the will under consideration here constituted a valid disposition of the fund. "A testator may in form make an absolute bequest of personal property to one, and then limit it over upon his death to another. The limitation in such case is not void for repugnancy, but qualifies the bequest." ( Livingston v. Murray, 68 N.Y. 485, 490.) This character of bequest is often found in the books.
The learned trial justice seems to have assumed that this clause of the will created a trust. He has not indicated, however, just what sort of a trust was created. In order to create an express trust in property there must be "'(1) a designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee, and (4) the actual delivery of the fund or other property, or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee.'" ( Brown v. Spohr, 180 N.Y. 201, 209.)
In the present case there was no express gift to the executors and no direction for them to apply the income to the use of anybody. ( Snedeker v. Congdon, 41 App. Div. 433.) Thus there was no trust vested in the executors as trustees. "Nothing whatever is required of them which they may not do as executors and by virtue of the power impliedly conferred. They hold as executors merely, performing their duty as such without taking a trust estate." ( Bliven v. Seymour, 88 N.Y. 477.) In the case just quoted the court had under consideration quite similar language of a will providing: "I give to my two daughters * * * one thousand dollars each, to be put at interest and there kept during their lifetimes, and they are to have the use thereof, then the principal to go to their children respectively each." This was held to constitute a life estate with remainder over. So also in Snedeker v. Congdon ( supra), a bequest of the interest and income of the property during life was held to be a bequest of a life estate simply. Where the legal interest and beneficial estate are merged in the same person, the result is not a trust but there is a legal estate in that person of the same duration as the beneficial interest. ( Woodward v. James, 115 N.Y. 346, 357; Greene v. Greene, 125 id. 506; Haendle v. Stewart, 84 App. Div. 274.) Since the gift of the fund was made directly to Angeline M. Cobb and she was given the beneficial interest of the income therefrom, the effect was to create in her a legal estate for life and not a trust for her benefit. A life estate "can as well be created in money or a fund as it can in real estate." ( Snedeker v. Congdon, supra, 436.)
If Angeline M. Cobb had died leaving her surviving Frederick D. Cobb, not then of age, the accumulation of income for his benefit until he reached majority, providing he lived so long, would have created a trust which would have vested in the Supreme Court. (Laws of 1882, chap. 185; revised by Pers. Prop. Law [Gen. Laws, chap. 47; Laws of 1897, chap. 417], § 8, as amd. by Laws of 1902, chap. 150; now Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 20, as amd. by Laws of 1911, chap. 217.) And it was competent for the testator to dispose of the accumulations of income in case the minor died before reaching majority. ( Smith v. Parsons, 146 N.Y. 116.)
"Whenever a testator gives and bequeaths a sum to a legatee the law requires it to be paid to the person entitled, within one year from the issue of letters, * * * unless some different time is named, or some other provision forbids the payment or shows that it was not intended. The last occurs whenever a mere life estate is given with remainder over, for in such case the principal sum is not given at all to the primary legatee, but only the use and annual income, and the principal remains in the hands of the executor to be paid over at the appointed time." ( Matter of Denton, 102 N.Y. 200, 203.) This is especially true where the legatee has a sum of money with no power to expend any portion of the corpus and the testator does not expressly direct that the fund be turned over to the life beneficiary. ( Matter of McDougall, 141 N.Y. 21.) In that case the testator left the "'rest and residue' of his estate [consisting of $6,000 in cash] to his wife" to be used and enjoyed by her during her life or widowhood. The court said: "In such a case the legatee for life is not entitled to possession of the corpus without giving security, certainly not if he be insolvent or a non-resident. In other cases where it has been held that the legatee was entitled unconditionally to the possession of the legacy without security, other facts existed, such as where the language of the will made it manifest that the testator intended to give to the legatee power to use in his discretion some portion of the corpus of his estate for his support, or a right to dispose of it during his life by gift or otherwise, or else it appeared that it was personal property of the nature of chattels which would require possession in order to enjoy the gift and such possession was clearly contemplated by the testator, or the whole scheme of the will or the terms of the particular legacy were such as to show that the testator intended to give a legacy of money for life only, and yet clearly intended the life legatee to have possession thereof and trusted to him not to waste, use or otherwise dispose of the corpus." Such was the case of Smith v. Van Ostrand ( 64 N.Y. 278), where express direction was given by the testator that the fund be paid over to the life beneficiary and special language of the will was construed to give her more than a life estate. She could take as much of the principal as she needed for her support. ( Bliven v. Seymour, supra, 478.) Except in such a case the executor should be decreed to have the fund and invest it and pay the interest to the life tenant, or if she elects to take the corpus, then she should be permitted to do so upon giving proper security. ( Matter of McDougall, supra; Matter of Colwell, 181 App. Div. 408. ) The executor has authority, upon receiving satisfactory security for its return, to deliver possession of the money to the life tenant for the duration of her life, but that is the extent of the executor's power, if he does not retain it himself and invest it in the securities open to him under the law. ( Moss v. Cohen, 158 N.Y. 240, 252; Wetmore v. Porter, 92 id. 76; Lee v. Horton, 104 id. 538, 541; Zimmerman v. Kinkle, 108 id. 282, 287; Deobold v. Oppermann, 111 id. 531.) He cannot invest it except in certain securities. ( King v. Talbot, 40 N.Y. 76; Matter of Wotton, 59 App. Div. 584, 586; affd., 167 N.Y. 629; Laws of 1889, chap. 65; Pers. Prop. Law of 1897, § 9, as amd. by Laws of 1902, chap. 295, and Laws of 1907, chap. 669; now Pers. Prop. Law of 1909, § 21, as amd. by Laws of 1918, chap. 544, and Laws of 1922, chap. 599, and Decedent Estate Law, § 111, as amd. by Laws of 1918, chap. 544, and Laws of 1922, chap. 593. See, also, Banking Law [Gen. Laws, chap. 37; Laws of 1892, chap. 689], § 116 et seq., as amd.; Banking Law [Consol. Laws, chap. 2; Laws of 1909, chap. 10], § 146 et seq., as amd.; Banking Law [Consol. Laws, chap. 2; Laws of 1914, chap. 369], § 239 et seq., as amd.) He cannot loan it to third parties in any such way as this fund was loaned to a contingent remainderman.
If it had been placed in the possession and control of Angeline M. Cobb by the terms of the will, she would have held it in trust for the remainderman ( Matter of Denton, 102 N.Y. 200; Smith v. Van Ostrand, 64 id. 286); but the testator did not create her a trustee for the remainderman. While the fund was not turned over to her, but was loaned to Frederick D. Cobb, which was an investment not authorized by law and which has never been and is not now authorized by statute and, therefore, illegal, the fund or securities representing it are now in the control of Angeline M. Cobb jointly with one of the administrators of the estate of Frederick D. Cobb. If she is to continue to hold it, it must be held by her in her capacity as life beneficiary upon the giving of proper security. The Supreme Court has jurisdiction to require it. The power of a court of equity to require security from the life beneficiary at the suit of the executor or a remainderman rests "upon the jurisdiction which such court has in relation to the custody of funds by those who have but a beneficial interest therein and not an absolute title, and where such title devolves upon persons in remainder." ( Matter of Blauvelt, 131 N.Y. 249, 253. See, also, Matter of Skinner, 81 App. Div. 449.)
The plaintiff is one of the remaindermen here and in his complaint alleges that he is bringing this action at the request of other remaindermen, but he brings this action as the sole surviving executor. As such, he is a proper party to bring it. ( Tyson v. Blake, 22 N.Y. 558, 562; Moss v. Cohen, supra, and cases cited.) As executor he is responsible for the carrying out of the wishes of his testator and although he might be personally responsible for any loss of the fund due to any illegal investment yet the court will aid him in his capacity as executor to recover it if it can be recovered. ( Moss v. Cohen, supra, and cases cited.) The agreement was unlawful because the executor was wholly unauthorized by law to make the loan. The plaintiff could not by such loan discharge himself from the performance of the duty to pay the corpus to the remaindermen. Neither could Frederick Cobb acquire any title to such moneys by reason of any agreement with the plaintiff. All parties dealt with the fund knowing it to be the subject of contingent reversion to the estate and that its character as such followed it into the hands of any person receiving it with knowledge of the facts. ( Moss v. Cohen, supra, 252.)
It is clear that under the authorities cited this action can and should be maintained ( Moss v. Cohen, supra, and cases cited), unless the decree of the surrogate made in 1892 in the accounting proceedings of the executors of the estate of Hodgman must be taken as res adjudicata so as to preclude this court from declaring the illegality of and from disapproving the continuance of the investment which had been made. We think the sole effect of the decree of the surrogate was to approve of Angeline M. Cobb and Frederick D.H. Cobb as proper custodians of the fund and to discharge Mary E. Yates from responsibility as executrix for their continued custody. It is uncontested here, however, that the moneys were in fact loaned to Frederick D.H. Cobb and were not in fact turned over to Angeline M. Cobb and Frederick D.H. Cobb as indicated by the decree. The decree so far as it is disclosed in the record before us does not indicate that the surrogate passed upon any loan to Frederick D.H. Cobb or the giving of the bond as security therefor. So far as we can see this improper investment was never expressly passed upon by the surrogate and there can be no implication that he did approve an illegal investment. The decree merely approved the accounts as rendered and, there being no specific ruling on the validity of the investment, the matter is not res adjudicata so as to preclude this court from disapproving of the continuation thereof. ( Matter of Bannin, 142 App. Div. 436.)
Assuming that the approval of the surrogate in an accounting proceeding in which all parties in interest here were represented may be sufficient to bar any inquiry as to the legality of the thing approved by the surrogate, the decree of the surrogate cannot be considered res adjudicata as to a transaction which did not conform to that which was approved. The thing done was in fact illegal and the legality of it is properly before us. The investment of the fund by loan to Frederick D.H. Cobb was illegal and should not be continued. The loan was treated by the parties to it as an investment. The bond and the stipulation signed on the day of giving the bond reveal that this was so. It is not denied by the parties that this was the fact. We can do no other than to treat it as such.
While the decree of the surrogate purported to discharge Mary E. Yates, as executrix, as to the custody of the fund then authorized, it did not in fact discharge her from responsibility as executrix for an improper disposition of the fund at variance with the terms of the decree. The loan was illegal in the sense that it was unauthorized. It was not such a void instrument as to absolve the parties to it from a responsibility under it. ( Moss v. Cohen, supra.) The plaintiff as executor has the right to follow the fund and to recover the full amount of it from the obligors on the bond, if the securities now in the possession of Amos H. Cobb and Angeline M. Cobb are inadequate. We are confronted with the fact, however, that at the present time the bond has not been breached. The interest has been regularly paid and the agreement in the bond was for the payment of the interest during the life of Angeline M. Cobb and the return of the principal upon her death. The executor is not, therefore, in a position at this time to enforce the provisions of the bond since Angeline M. Cobb is still alive and there has been no default in payment of interest. There is nothing, however, to preclude this court from disapproving of the continuance of the investment itself and from requiring a repayment of the illegal loan by the estate of the person who received it. That is clearly the duty of the court. The bond was given simply as security for the loan which must be discontinued. The fund seems to be intact. Securities seemingly representing its full value are being held by a representative of the estate of Frederick D. Cobb, awaiting the issue of this litigation. The plaintiff is entitled to the recovery of the fund unless Angeline M. Cobb elects to possess the same upon the giving of proper security; and in case such security is required and not given to the plaintiff as the executor of the estate, it is his right and duty to retain the same and invest it for the purpose of carrying out the provisions of the will.
The judgments should be reversed on the law and facts, without costs, and the matter remitted to the Special Term to take such action and to enter such judgment as may be proper in accordance with the views expressed in this opinion. The court disapproves of findings of fact three, fifteen, sixteen, twenty-one and twenty-five.
All concur.
Judgments reversed on law and facts, without costs, and matter remitted to the Special Term to take such action and to enter such judgment as may be proper in accordance with the views expressed in the opinion. The court disapproves of findings of fact three, fifteen, sixteen, twenty-one and twenty-five.