Clark v. Clark
| Decision Date | 10 December 1895 |
| Citation | 42 N.E. 275,147 N.Y. 639 |
| Parties | CLARK v. CLARK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, Second department.
Action by Mary M. H. Clark against Augusta Clark to recover dower. From a judgment of the general term (32 N. Y. Supp. 325) modifying and affirming a judgment for plaintiff, defendant appeals. Affirmed.
Walter C. Anthony, for appellant.
Joseph M. Pray, for respondent.
This action was brought to recover dower in the premises described in the complaint. The property passed under the will of the father of plaintiff's husband, and her right is first assailed upon the ground that, by the true construction of that will, the husband was never seised in fact or in law of any estate in the land to which dower could attach. It is claimed that under the will a trust was created which vested title and possession in the trustees, so continuing from the death of the father to and beyond the decease of the son, whereby seisin was denied to the latter, and, as a consequence, dower did not attach. There was a trust created by the will, but I think it ended when the youngest of testator's children became of full age. That child was Robert S. Clark, who reached his majority in March of 1876. The language of the will in creating the trust is very definite and explicit, and is this: ‘I give, devise, and bequeath unto my executrix and executors all the rest, residue, and remainder of my estate, real and personal, so long as my youngest child shall live, but not after the majority of such child shall be reached, upon trust to take charge and possession of the same,’ etc. It not only prescribes the period during which the trust shall continue, measuring it by the minority of the youngest child, but it adds negative words forbidding its continuance longer. In the face of these explicit provisions, we are asked to extend the trust term for the life of the testator's widow, by an implication derived from some further provisions of the will. The purpose of the trust was to secure to the testator's widow an annuity of $1,500, and to make needed advances to the children. The will added, upon the death or majority of the youngest child, the following provision: ‘So much of my property shall be set apart as will produce an annual income of $1,500, which shall be paid to my wife during her life in half-yearly payments, and the rest, residue, and remainder shall be divided among my children.’ There was a further provision that, upon the death of the wife, the property set apart to produce the widow's annuity should be distributed in the same manner. The evident scheme of the will, therefore, was to put all the property in trust until the youngest child should reach his majority, and then end the trust, and give the estate over to the children, subject only to the further payment of the widow's annuity. It may be admitted that a trust to secure that payment might have been convenient, but it was certainly not necessary. The annuity was a legacy, in a possible contingency charged upon the land, but still a legacy which the executors could pay in the orderly and proper performance of their official duty, and which did not make necessary the prolongation of the trust. There was an abundance of personal property at testator's death to furnish the capital which would produce the income, and he deliberately chose, by the language he used, to put the widow at first in the attitude of a trust beneficiary, while a trust was needed to enable advances to be made to the children, but when that necessity disappeared, through the direct gift to the children, to leave her a legatee, having for her security a charge upon the property. A trust by implication involves a supposed intention to create one on the part of the testator, but, I think, cannot be raised where the will expressly or explicitly negatives any such intention. At all events, there is no such necessity as would justify a disregard of the testator's manifest purpose to end the trust at the majority of the youngest child.
It is then said that, if there was no trust, there was, at least, a power in trust. But no power, as such, was conferred or sought to be conferred. All that we find is a legacy of an annuity and a duty of paying it imposed upon executors,-a duty which they were perfectly able to perform by force of their official character, as they were situated...
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Commissioner of Internal Revenue v. Whitehouse, 2294.
...payment of the annuities. No specific fund was set aside in trust for their payment. Pierrepont v. Edwards, 25 N. Y. 128; Clark v. Clark, 147 N. Y. 639, 42 N. E. 275; Peck v. Kinney (C. C. A.) 143 F. 76, and authorities cited. In Matter of Toms, 84 Misc. Rep. 312, 147 N. Y. S. 550, 554, the......
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De Reuter v. Commissioner of Internal Revenue
...are paid. That the annuities provided by the will are in fact bequests, seems clear. See Pierrpont v. Edwards, supra; Clark v. Clark, 147 N. Y. 639; 42 N. E. 275; Canal Bank v. Hudson, 111 U. S. 66; 3 C. J. Are these annuities bequests of income within the meaning of section 219, or are the......
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...7-2.2). As no reversion to the settlor is now possible, the corpus belongs to the beneficiary in fee simple absolute ( cf., Clark v. Clark, 147 N.Y. 639, 42 N.E. 275). Moreover, since the covenants were satisfied in December 1983, the County has had no further duties as trustee and at such ......