Cox v. Rusling, 5879.

• Decision Date: 09 November 1936
• Docket Number: No. 5879.,5879.
• Citation: 86 F.2d 236
• Parties: COX v. RUSLING.
• Court: U.S. Court of Appeals — Third Circuit

86 F.2d 236 (1936)

COX v. RUSLING.

No. 5879.

Circuit Court of Appeals, Third Circuit.

September 10, 1936.

Rehearing Denied November 9, 1936.

Wm. M. & Thomas R. Clevenger, of Atlantic City, N. J., for appellant.

Backes & Backes and Peter Backes, all of Trenton, N. J., for appellee.

Before DAVIS and THOMPSON, Circuit Judges, and DICKINSON, District Judge.

DAVIS, Circuit Judge.

This is an appeal from an order of the District Court dismissing the appellant's bill of complaint.

Gershom Rusling died on February 5, 1881, leaving two sons, William Henry Rusling and James F. Rusling, and a granddaughter, Eliza R. Bray, who is known in this case as Eliza B. Cox. In the fourth paragraph of the will of Gershom Rusling a trust was created in the following words: "Fourth. I give and bequeath to my executors the sum of Five Thousand Dollars ($5,000) in trust to safely invest the same, for the benefit of my granddaughter Eliza R. Bray, on Bond and Mortgage (First Mortgage), on improved real-estate, worth at least double the amount of the said mortgage, and the interest thereof in the discretion of my executors to be applied for the best advantage of my said granddaughter during her minority, and until her marriage, and lawful issue be born of her body, and said issue attains the age of two years, when the said principal sum and all unappropriated interest thereon shall be paid to her, for her sole and separate use, with power to bequeath the same, or if invested by her in real estate with power to mortgage, sell, convey, devise, and bequeath the same, with or without the consent of her husband, unless my executors should deem it to her advantage to pay the same to her sooner, after she arrives at the age of twenty-one years. But should she not live to the age of twenty-one years, or after that age should she die, without lawful issue as aforesaid, before the said legacy shall be paid her, then it is my will and I do direct, that the sum of Five Thousand ($5,000), invested for her benefit as aforesaid shall be equally divided between my sons, William Henry Rusling and James F. Rusling, the representatives of either deceased one to be entitled to the share his or her or their parent would have received, if then living."

William H. Rusling and James F. Rusling duly qualified as executors and trustees under the will of Gershom Rusling. At the time of the death of Gershom Rusling, Eliza Bray was in her seventeenth year. At the age of twenty years she married William H. Andrews, from whom she obtained a divorce four years later. A child was born of this marriage but died within seven weeks of its birth. About a year and a half after her divorce she remarried. Her second marriage, to William Cox, was childless, but lasted throughout her lifetime. She died on October 22, 1932, at the age of sixty-nine years leaving her husband her sole executor, legatee, and devisee. Both William H. Rusling and James F. Rusling predeceased Eliza Cox. William left no issue, but James left two sons, one of whom, James W. Rusling, qualified as successor trustee and is the appellee in the present appeal. Though Eliza Cox received the income of the trust throughout her entire life, the principal was never transferred to her.

On May 8, 1934, William Cox filed a bill of complaint in which he sought to be declared the owner of the trust fund, and prayed that the defendant, James W. Rusling, account to him for the principal and income from said trust fund, and "that the defendant be decreed to pay to the complainant as executor and sole devisee of Eliza B. Cox, the sum of $5,000, and the accumulations thereon."

Judge Forman of the District Court dismissed the bill of complaint and held that the estate of Eliza Cox was vested subject to divestment upon her death without having had a child who had reached the age of two years, or without having received the principal of the trust under the discretionary powers granted to the trustees; that the estate of Eliza Cox, née Eliza R. Bray, was divested upon her death since she had not fulfilled the above-mentioned conditions; and that therefore William Cox was not entitled to the relief which he sought in the bill. From the order dismissing the bill, this appeal was taken.

Though the legal title of the estate was given to trustees, the gift is deemed in equity to have been made to the cestue que trust. Traverso v. Traverso, 99 N.J.Eq. 514, 133 A. 705, affirmed in Traverso v. McMillin, 101 N.J.Eq. 308, 137 A. 919. Where the beneficiary is also given the income until the time that the corpus is to be paid, the estate is deemed to have become vested on the death of the testator. Fidelity Union Trust Co. v. Rowland, 99 N.J.Eq. 72, 132 A. 673; Hicks v. Hicks, 99 N.J.Eq. 92, 132 A. 857, affirmed in 100 N.J.Eq. 346, 134 A. 917; Traverso v. Traverso, supra. The mere fact that the gift of the principal was postponed until...