Opinion
July, 1899.
E.L. Stevens, for plaintiffs.
J.S. Baker, for defendants Reese and Miller.
Risley Love, for defendant Dennison.
In my opinion Seymour Jones took a simple life estate in the property of his wife and no trust was created. There certainly can be no question but that the first part of the clause under review whereby the testatrix gave him "the use" of all her property "for and during the term of his natural life" created such estate, especially when read in connection with clause 2 which gives remainder to the children. Matter of McDougall, 141 N.Y. 21; Place v. Burlingame, 75 Hun, 432; Covenhoven v. Shuler, 2 Paige, 122.
It is urged by the plaintiffs, however, that the further words "for his support, the same not to be liable for any debts existing against him," are sufficient to create a trust estate. But that does not seem so to me. It goes without saying that the testatrix might very easily have created an estate which would be in trust and would give the beneficiary the use and income of her property for his support during his life and free from his debts. On the other hand, she could with equal ease give him a life estate without any trust. The question is simply, which did she do? There is no trust in form or any trustee. There is a gift of an absolute estate for life. Having made this, the testatrix further says that it is for the support of her husband. But she might have that purpose and secure that result and still not thereby so modify her language previously employed as to turn the estate created into one in trust. Swarthout v. Rainer, 143 N.Y. 499.
So with reference to the expression used that the estate created for the benefit of the husband was not to be subject to the payment of his debts. If I am right that she had already created an estate for life, this provision tacked on with reference to debts would not be sufficient to change the nature of the estate created or exempt the property from the liabilities incident to such estate. Bramhall v. Ferris, 14 N.Y. 41, 44.
Concluding that the husband Jones, took, under his wife's will, an estate for life, the executors had the right to let him have possession of the personal property owned by his wife and comprised in such estate, and the income and increase thereof (subject to one condition hereafter to be noted) was his to dispose of as he saw fit and subject to the payment of his debts. Matter of Washbon, 38 N.Y. St. Repr. 619; Matter of McDougall, 141 N.Y. 21; Miller v. Delamater, 12 Wend. 433, 438.
The condition referred to is that current taxes, expenses, etc., upon the property, constituting the principal and corpus of the life estate, should be paid by him as life tenant. This was a duty which he owed to the estate and to the remaindermen and which the latter could, if necessary, enforce. It was, and is, an equitable charge against the income having precedence over ordinary claims against the beneficiary. Cairns v. Chabert, 3 Edw. Ch. 313.
So far as the plaintiffs and defendants, outside of the defendant Dennison, are concerned, no question is raised as to the sufficiency or legality in form of the levies made by the sheriff. The plaintiffs expressly allege the same in their complaint. I fail to see how the defendant Dennison is in position to raise that or any other question. He has been discharged as trustee in bankruptcy and has no interest in or lien upon the property.
While some evidence was given upon the trial as to what of the property levied upon was increase or income and not principal of the life estate, it is not sufficiently definite to enable me to pass upon that question intelligently. It will be necessary to have a reference to determine this and also to decide what taxes, etc., if any, are unpaid upon the principal of the life estate which it is the duty of the life tenant to pay, and to the end that if necessary the proceeds of the property to be sold upon execution, if any, may be first applied to the payment of such unpaid taxes, etc., if any. This course of application of proceeds will avoid the necessity which might otherwise arise for the appointment of a receiver of the property.
Findings and interlocutory judgment, in accordance herewith, may be settled upon two days' notice if not agreed upon.
Ordered accordingly.