Cranston v. Plumb

Clerke, P. J.

I am of opinion that the plaintiff" has a sufficient legal and equitable interest in the trust fund to authorize him to intervene for its protection. He created the trust, and supplied the fund, on his separation from his wife, which he intended should be exclusively reserved for her maintenance. If the trustees are in such circumstances, or are acting in such a way, that there- is reason to fear that it will be diverted from this purpose, it would be strange if he has not the right to interpose, in order that his intention in creating the trust should not be utterly defeated. In the deed of separation, executed alike by the plaintiff, Mrs. Cranston, and the trustees, it is stipulated that the fund shall be invested in a certain manner, and the proceeds applied to the maintenance of Mrs. Cranston. Are the trustees not responsible to the plaintiff, under this stipulation, and has he not a right to compel them to perform it by resorting, in his own name, to this court for its aid and protection ?

" Besides, the plaintiff has a pecuniary interest in the preservation of this fund, and in the faithful performance of this trust. To be sure, according to a provision of the deed of separation, Mrs. Cranston is empowered to dispose, by her last will and testament, of the whole or any part of the fund which may remain unexpended at the time of her decease. The whole, or some of it, might be unexpended at the time of her decease. Certainly, if the trust be faithfully executed, twenty thousand dollars, the amount which the trustees stipulate shall be kept invested on bond and mortgage on real estate, during her lifetime, will be unexpended on that event. It is possible that she may make no disposition of the trust fund, or any portion of it, by her last will and testament. In that case, whatever may remain unexpended would, undoubtedly, revert to the donor. This is even provided for by statute. “ When the purpose for which an express trust shall have been created shall have ceased, the estate of the trustees shall also cease,” (1 R. S. 730, § 86, marginal,) and of course shall revert to the donor.

If it is necessary to add any thing to these considerations, I remark that the deed of separation contains a provision which is quite conclusive. After the covenant that Hiram Cranston (the plaintiff) shall at all times thereafter permit his wife to live separate and apart from him, and that he will not exercise or claim marital control over her, or interfere with her in any manner whatever, it is added that nothing therein contained shall preclude him from taking all lawful méans, should the occasion arise, to compel the performance of the trusts and agreement in that instrument contained;

The order should be affirmed, with costs.

Geo. G. Barnard, J., concurred.