Farrar v. McCue

Barnard, P. J.:

By the will of Abram W. Jackson, his executors took no estate in the lands in question. After making certain bequests of money to various persons named, and devising one piece of his real estate to Mrs. Sanford, the testator gave “ all the rest and residue of my estate, both real and personal (after the payment of tire above legacies), to my three youngest children, Abram W., Ida Amelia and Ernest, in fee.”

The executors are directed to invest the rest and residue, and apply the interest to support these three children during their minority, and after they reach that age, each is to receive the interest of one-third. No part of the principal of the estate included in the rest and residue, is to be distributed to these three children as long as any two of them shall survive. After two die the estate so bequeathed was given equally to the survivor and the heirs of the two deceased children, “ it being my intention hereby to devise and bequeath to each of my said three youngest children one equal third of the rest and residue of my estate, and that upon the death of each one of them his or her heirs shall receive the share to which his or her ancestor was entitled.”

The testator owned the lands at his death. The ease does not show whether there are children of either of these three youngest children. The estate of the testator has been settled by his executors and all the legacies paid in full; power was given to the executors to sell real estate to carry out the purposes of the will. The power was not exercised as to the lands involved in this submission, and these lands entirely fall within the rest and residue clause and wholly belong to the donees under that clause. The will in terms gives an estate “ in fee ” to the children, which is subsequently reduced, but the words of the grant are entirely consistent with a legal estate, subject to a power of sale by “said executors.” The estate having been fully settled by these executors, there is no further need of a sale, and as no estate is given to them, a sale will not be upheld as incident to the estate. The children are all over the age of twenty-one, and were so when the plaintiff was appointed. My conclusion is that there is no further trust in the lands. That the rights of the parties are as follows: One of the children holds a fee in an equal undivided third. The two children who die first, hold a like fee each, to be divested when it happens that they die leaving a brother or sister living. In such case the share of the one so dying will go to her or his heirs. If there are children living of either or all of these three youngest children of testator, they have now a vested remainder in fee liable to be divested as to the children of the longest liver by the death of the two • others. As to the children who are or are to be of the others, there will be no divesting. They have now, and will continue to have, a vested remainder in fee. There is- an appearance as if the facts in this case were concealed from the court which appointed plaintiff trustee. The order was granted upon the petition of the executor to the will. The three youngest children of testator joined in it. These petitions are not given in the submitted case. Mrs. Pells also joined in the petition. She had no interest in these premises. The order recites that these four children of testator “ are the only-persons having an interest in said estate.” If there were grand children, why was not the fact mentioned, so that the court could have asked security for them. Why was not the will produced so ' that the court could ask security for those who might be born subsequently? If we are right in our conclusions, that there is no estate to go to a trustee, the appointment can work no harm. If there are infants, will they be bound by the appointment of a trustee obtained in such a mode. It may be that such an appointment cannot be attacked collaterally, but the case is one where 'a court should not impose upon a purchaser the burdens and danger of such a risk.

, There should be judgment for the defendant upon the submitted case, with costs.

Gilbert, J., concurred; Dykman, J.,- dissented.

Judgment for the defendant upon the submitted case, with costs.