Summary
In Huber v. Donoghue, 49 N.J. Eq. 125, 129, 23 A. 495, 496, the court quoted with approval from 2 Perry on Trusts, c. 32, § 920, as follows: "Although a trust may not have ceased by expiration of time, and though its purposes may not have been accomplished, yet if all the parties who are or may be interested in the trust property are in existence, and sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust fund among those entitled."
Summary of this case from Ridgeway v. WoodwardOpinion
01-23-1892
HUBER et al. v. DONOGHUE.
G. D. W. Vroom, James E. Hays, Samuel Walker, Jr., and C. H. Beasley, for complainants. R. S. Woodruff, for defendant.
(Syllabus by the Court.)
Bill by Matilda Huber and others against Thomas J. Donoghue for the determination of a trust.
G. D. W. Vroom, James E. Hays, Samuel Walker, Jr., and C. H. Beasley, for complainants.
R. S. Woodruff, for defendant.
BIRD, V. C. The testator in express words gave all his real estate to his executors for the purposes named in his will. He thereafter directed that his executors put his wife in the possession of a certain house and lot, and permit her to enjoy it for ten years after his death free of rent, provided she shall so long remain unmarried. At the expiration of five years from the time of his death he directed his executors to sell certain four houses and lots. He then ordered as follows: "At the expiration of ten years from my death, 1 direct my said executors to sell at public sale all the residue of my real estate to the highest bidder." He afterwards adds these words: "I do direct that my said executors shall, out of the proceeds of the sales above mentioned, and the rents, issues, and profits of such properties and investments, shall be applied, so far as necessary, to the maintenance of my wife and unmarried children during the period of ten years next succeeding my death; and at the expiration of said ten years (after the sale last above mentioned) all the moneys or investments then remaining in the bands of my said executors shall be divided equally, share and share alike, between my wife and my children who survive me." He then provided, in case of the remarriage of his widow, that then, instead of having an equal proportion of the proceeds of the said sale, his executors should pay her $2,000 in cash. The bill states that the children of the testator have all arrived at the age of 21 years,and that they and the widow are desirous of determining the trust committed to the executors as trustees, with a prayer that the real estate may be sold before the expiration of 10 years, as directed by the testator. The widow has not remarried. This fact would seem to render it impossible for the court to declare the trust terminated, since in case of her remarriage she would be entitled to $2,000 of the proceeds of the sales of the real estate. But, although the trust to the fullest extent intended by the testator may not be declared at an end, I cannot perceive that this should interfere so as to prevent the court giving such directions as will in other respects determine the trust, relieve the trustees of all further obligations in that behalf, and transfer the interests of the legatees to them in the same manner as they would be entitled to at the expiration of the 10 years contemplated by the testator. This would not impair the relative rights of the children and the widow in case of her remarriage.
With the aid of the court, can an absolute title be transferred prior to the expiration of 10 years? First, is the interest given to the parties who ask for the sale a vested interest? In other words, do their rights include the entire estate, subject only to the power given to the executors to sell? If there were any doubts whatever upon this point prior to the determination of the court of errors and appeals in the case of Post v. Herbert, 27 N. J. Eq. 541, all such doubts were then removed in favor of the vesting of the absolute fee. In this case, as in that, the estate was given to the trustees for the period of 10 years, not only for the benefit of the widow, but for the children also during that period. The vesting, therefore, waits upon no contingency.
If the interest be a present, vested interest, which by the direction of the will is to be enjoyed in possession at and after the expiration of 10 years, can the children who will then be entitled to such possession, with the consent of the widow, enjoy such possession now, or, what is equivalent thereto, effectuate a sale and pass a valid title? This would seem to follow both from reason and the law, notwithstanding the express devise of the lands to the executors, with power to sell the same after the expiration of 10 years, and then to divide the proceeds. This rule rests upon the fact that in every such case the executors in reality are only clothed with a power of sale, and that the title is vested in them for no other purpose than that of conveying it. Consequently the executors have no interest. These facts bring the case within the principle that, where lands are ordered to be sold, and the proceeds divided among certain persons,— that is, where there is no contingency as to who may be entitled, and those who have authority to sell have no other duty to perform with respect to the lands or proceeds than to sell the lands and divide the proceeds among the persons named as legatees,—the persons named as such legatees may unite and elect to take the land. Morse v. Bank, 47 N. J. Eq. 279, 20 Atl. Rep. 961; Gest v. Flock, 2 N.J. Eq. 108; Biggs v. Peacock, 22 Ch. Div. 384; Stew. Dig. Sup. p. 179, § 57; 2 Lewin, Trusts, c. 26, p. 691, § 2; Fluke v. Fluke's Ex'rs, 16 N. J. Eq. 478; Fletcher v. Ashburner, 1 White & T. Lead. Cas. Eq. 1151; Armstrong v. McKelvey, (N. Y. App.) 10 N. E. Rep. 266. All the parties in interest having united in filing their bill, and asking for a sale of the land, and a determination of the trust before the expiration of the 10 years, they will be held to have elected to take the land.
It will be perceived that the persons who are to take in this case have been ascertained with certainty. In this respect it differs from the case, In re Bartles, 33 N. J. Eq. 46. In that case, after the death of the life-tenant, the lands were devised to such person or persons as should be her heir or heirs at law of lands held by her in fee-simple. This language created an element of uncertainty which it was quite impossible to overcome during the continuance of the particular estate. The court said: "She has heirs apparent and presumptive now, but whether those persons will be her heirs at her death, and so entitled to the remainder, cannot be told until that time arrives." Nor should the case of Booraem v. Wells, 19 N. J. Eq. 87, influence the judgment of the court in this case. In that the executors attempted to convey title to lands during the life-time of the tenant of the particular estate without the consent of such tenant, and also without the aid of the court, when the only authority given them by the will was to sell after the death of the life-tenant.
In the third place, it is true, as above assumed, that the executors have no duty to perform except to make sale of the lands and to divide the proceeds. The bill alleges that they have not any interest and have no other duty imposed. These allegations are admitted in the answer. These allegations and admissions must therefore be controlling. With these facts and these legal principles for a foundation, 1 think the court may, without any embarrassment, direct a sale of the land in question, and declare the trust to be determined, except as to the rights and interests of the widow incase of her remarriage. "Although a trust may not have ceased by expiration of time, and though its purposes may not have been accomplished, yet if all the parties who are or may be interested in the trust property are in existence, and sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust fund among those entitled." 3 Perry, Trusts, c. 32, § 920; 2 Lewin, Trusts, c. 25, p. 646x; Pearson v. Lane, 17 Ves. 101; Whall v. Converse, (Mass.) 15 N. E. Rep. 660. In Josselyn v. Josselyn, 9 Sim. 64, it was decided that, where certain moneys were to be paid to a legatee upon his arriving at 24 years of age, he was entitled to have the fund paid to him on his arriving at 21, because the whole equitable interest was in him at that time. Of like import is the case of Saunders v. Vautier, 1 Craig & P. 240. In Sears v. Choate, 146 Mass. 395, 15 N. E. Rep. 786, is this comprehensive statement of the rule: "Where the plaintiff has the entire beneficial interest,both in the income of property held by trustees for his benefit and in the property itself, and there is no limitation over of the estate in any contingency to any other person, no discretion given to the trustees, and no provision that the income or estate be inalienable by the plaintiff, or attachable by his creditors, he is entitled to a decree terminating the trust." This case has been considered upon the assumption that all the parties in interest, including the widow, join in the prayer for a sale of the premises. The widow has not remarried. If it should appear upon further investigation that, in case of her remarriage, she would be entitled to rights or interests not excluded by her present consent to a sale, such interest can be protected or provided for by the other parties in interest. The authority for this is Pearson v. Lane, supra. I think an unexceptionable title may be made. A decree will be advised according to the prayer of the bill.