United States Trust Co. v. Roche

• Citation: 22 N.E. 265,116 N.Y. 120
• Parties: UNITED STATES TRUST CO. v. ROCHE et al.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

116 N.Y. 120

22 N.E. 265

UNITED STATES TRUST CO.

v.ROCHE et al.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from supreme court, general term, first department.

On the 10th day of November, 1858, James A. Foster was the owner in fee of an undivided half of five lots,-Nos. 40, 42, and 44 Bond street, and Nos. 43 and 47 Great Jones street, in the city of New York. At that date he, Anna S. Stagg, and Charles H. Town, in consideration of the then intended marriage of said Foster and said Anna S., entered into a tripartite contract under seal, whereby Foster conveyed said undivided half of the real estate to Charles H. Town, ‘upon trust, to receive the rents and profits of the said moiety and share of the said premises from time to time during the life of the said party of the third part, [Anna S.,] and apply the same to the benefit of, or pay the same into the hands of, her, the said party of the third part, [Anna S.,] for her own use and benefit, free from the debts, control, and engagements of the said party of the first part, [James A. Foster,] and so that her receipt alone shall be a discharge for the same, and from and after the decease of the party of the third part, [Anna S.;] and in case there shall at any time be any living issue of such marriage, then upon trust to sell all and every such moiety and share of the said premises, * * * and pay and divide the purchase moneys to and among all such issue equally, if more than one child, and if only one child, then to that one child, with power to invest the share of each child during minority in bonds and mortgages of improved real estate or government or state stocks, and apply the income and interest towards the comfort, maintenance, and advancement of such child or children until they respectively come of age; and as and when that respectively happens, then each child is to take its share of such invested property, with benefit of survivorship in the mean time between them; but if there be no living issue of such marriage at the time of the decease of the said party of the third part, [Anna S.,] then upon trust to convey the said moiety and share of the said premises, with the appurtenances, back unto and to the use of the said party of the first part, [James A. Foster,] his heirs and assigns, forever; and also, if there should be such issue, and they should all die in the lifetime of the party of the third part, [Anna S.,] or ever afterwards, without attaining the age of twenty-one years, then upon trust to convey the said moiety and share of the said premises, with the said appurtenances, unto and to the use of the said party of the first part, [James A. Foster,] his heirs and assigns; or, if sold, then transfer and pay over avails (whether invested or not) unto and to the use of the said party of the first part, [James A. Foster,] his executors, administrators, and assigns; but if the said party of the first part [James A. Foster] shall die in the lifetime of the said party of the third part, [Anna S.,] and no issue of such marriage shall survive her, the said party of the third part, [Anna S.,] then upon trust to convey the said moiety or share of the said premises unto and to the use of the said party of the third part, [Anna S.,] her heirs and assigns, or, if the same shall have been turned into money, then pay such avails unto her absolutely for her own use and benefit forever. * * * Also it is hereby declared and agreed that if the said party of the second part [the trustee] shall die, or become incapable from any other cause or desire to withdraw from the trusts herein, then the party of the first part, [James A. Foster,] if alive, or the party of the third part, [Anna S.,] in case of his death, shall have power in writing to nominate and appoint another trustee, who shall thereupon be vested with all the unperformed trusts and powers of the original trustee; * * * and that the present and any future trustee may from time to time deduct and retain in his hands and reimburse himself out of all or any of the moneys which by virtue of these presents, or any of the trusts aforesaid, shall come to his hands, all such costs, charges, and expenses as he may pay, expend, or be put to, unto, in, or about, or relating to, any of the trusts aforesaid, or otherwise relating to or in consequence of these presents.’

November 17, 1858, said Foster and Anna S. intermarried, and on the same day the marriage settlement was recorded in the office of the register of deeds of the city and county of New York. From 1871 to 1880, inclusive, Charles H. Town was the agent for the owner of the half of said real estate not held by him under trust, and he omitted to pay the taxes assessed on the whole property during those years, and also omitted to pay the water-rates assessed thereon in 1870, 1871, 1872, 1875, and 1876, which taxes and water-rates amounted, inclusive of interest, to $19,382.97, one-half of which ($9,691.48) was equitably chargeable to each moiety of said property. In July, 188§, the city advertised that the whole property would be sold for the purpose of collecting said arrears, and thereupon said trustee, James A. Foster, and Anna S. jointly petitioned the supreme court for leave to borrow sufficient money on mortgage to pay said arrears, interest, and expenses, together with the expenses of obtaining the loan. At this date James A. Foster and Anna S. had two infant children, for whom a guardian ad litem was appointed to take charge of their interests in the matter of said petition. A reference was ordered to ascertain and report the facts, and, on the coming in of the report, an order was entered September 9, 1881, granting the prayer of the petition, and directing that a mortgage be given for an amount sufficient to pay the following sums:

+-----------------------------------------------------+
                ¦For the services of the attorneys for the ¦          ¦
                +------------------------------------------+----------¦
                ¦petitioners                               ¦$ 400 00  ¦
                +------------------------------------------+----------¦
                ¦For their disbursements                   ¦42 97     ¦
                +------------------------------------------+----------¦
                ¦For the services of the guardian ad litem ¦200 00    ¦
                +------------------------------------------+----------¦
                ¦For the principal sum due the city for    ¦          ¦
                +------------------------------------------+----------¦
                ¦taxes and water-rates                     ¦9,691 48  ¦
                +------------------------------------------+----------¦
                ¦For interest on $9,691.48, and expenses of¦          ¦
                +------------------------------------------+----------¦
                ¦advertising                               ¦3,836 88  ¦
                +------------------------------------------+----------¦
                ¦For the charges of Trust Co. for          ¦          ¦
                +------------------------------------------+----------¦
                ¦examining title                           ¦297 25    ¦
                +------------------------------------------+----------¦
                ¦Total                                     ¦$14,468 58¦
                +-----------------------------------------------------+
                

On the 5th of October, 1881, the plaintiff loaned $14,450, taking the bond of the trustee conditioned for the payment of the sum, November 1, 1884, with interest at 5 per cent., payable semi-annually, and, as collateral thereto, said trustee, James A. Foster, and Anna S. Foster executed a mortgage upon the trust-estate, conditioned for the payment of said sum, as provided in the bond. July 2, 1883, the trustee having resigned his trust, Theodore M. Roche was, pursuant to the provision of the marriage settlement above quoted, appointed trustee in his stead, and entered upon the discharge of his duties. No part of the sum secured by the bond and mortgage has been paid, except the interest to November 1, 1884; and March 5, 1885, this action was begun to foreclose the mortgage. James C. Foster, the only surviving child of James A. and Anna S. Foster, is of full age, resides in the city of New York, but is not a party to this action. Theodore M. Roche, (the trustee,) James A. Foster, Anna S. Foster, and Clinton and Margaret Foster, the owners of...