Cuthbert v. Chauvet

Decision Date17 January 1893
PartiesCUTHBERT v. CHAUVET et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, second department.

Action by Ophelia J. Cuthbert against Cordelia D. Chauvet and others, involving the validity of the will of Francis D. Lasak, deceased. Victoria A. McKenzie presented her petition to the supreme court, reciting that the parties had agreed to a compromise, and praying for an order that the New York Life Insurance & Trust Company, the trustee of the will, be directed to become a party to the compromise. From an order of the general term affirming an order granting the prayer of the petition, (20 N.Y.Supp.336), the New York Life Insurance & Trust Company appeals. Reversed.

The petition is as follows:

“The petition of Victoria A. McKenzie, one of the defendants in this action, respectfully sows that the said action was brought and is now pending for the partition of real estate in the city of New York, and in the county of Westchester, belonging to the estate of Francis W. Lasak, late of Westchester county. That the said Francis W. Lasak left a last will and testament, * * * which said will was duly admitted to probate before the surrogate of the county of Westchester, and on appeal to the court of appeals the decree of said probate was affirmed. That various litigations are not pending with reference to the validity of the said will as a will of real estate; there being so pending ten actions of ejectment, the present action for partition, and an action for the establishment of the will. That in one of the actions of ejectment, tried in the county of Westchester, the trial occupied eight days, and terminated in a disagreement of the jury. That all the parties interested in the said estate as devisees or heirs at law have agreed, so far as they could so do, to compromise the said litigation, and to allow the said will to stand as a will of personal estate, but to be declared void as a will of real estate; and for the purpose of carrying out the said settlement and compromise have executed an agreement. * * * That the New York Life Insurance & Trust Company, which, by the said will, was appointed trustee of the trusts therein contained, and, among others, trustee of the trust under which your petitioner is the beneficiary during her life, has declined to become a party to the said compromise, or to any compromise, without the leave and direction of the court first had and obtained; and also for the reason that certain provisions of the said compromise agreement require modification and alteration, as follows: First. That all the provisions of the will relating to personalty shall stand. That a proper provision should be made for a person as yet unborn, who may possibly, under the said will, be entitled in remainder to the principal of the share devised to the said trustee for the benefit of our petitioner for her life. That provisions should be made for the commissions of said trustee of all the trusts contained in the will. That your petitioner, and, as she is informed and believes, all the other parties to the said compromise, will agree to such modifications as to this court shall seem just and proper; and she prays that the said the New York Life Insurance & Trust Company, as trustee as aforesaid, by authority and order of this court, become a party to the said agreement, modified and altered as this court may direct, to the end that a final settlement and compromise of the said litigation may be attained; and the court may make such other order in the premises as to it may seem just.”

R.S. Emmet, for appellant.

Calvin Frost, for respondent.


The appellant, which is the trustee of certain express trusts of real property, under the will of Francis W. Lasak, deceased, has been authorized and directed by the order of the supreme court to enter into a stipulation, which provides that a judgment shall be entered adjudging the will void as a will of real property, and thus annihilating the real-estate trusts created by it. We know of no power possessed by any court to compel a trustee to consent to a destruction of the trust, and the statutes of this state have denied to a trustee the power to do any act of his own volition which will accomplish such a result. The will of Lasak was admitted to probate by the surrogate of Westchester county after a prolonged contest, having for its foundation an alleged want of testamentary capacity, and his decree has been affirmed by this court. In re Lasak, 131 N.Y. 624, 30 N.E.Rep. 112. The trustee has thus become vested with a title to the trust property which is presumptively valid, and which cannot be impeached except for the incapacity of the testator, or for fraud or undue influence in the execution of the will. The burden of establishing its invalidity is cast by law upon the party assailing it, and the situation of the trustee in this respect is not different from that of the grantee of real estate under any other mode of conveyance. The grant may always be avoided by showing the incompetency of the grantor, or that its execution was procured by fraud or duress. By the sixtieth section of the law of uses and trusts (4 Rev.St. [8th Ed.] p. 2438) the whole estate in the land embraced in the trust provisions of the will is for the time being vested in the trustee, both in law and in equity, subject only to the execution of the trust. A judgment of the court which compels him to part with his title to this property without a trial, without the submission of competent proofs, and without the application of the well-established principles of law regulating the determination of such questions, is in direct violation of the fundamental law of the state and of society. It is true that courts of chancery and other equity tribunals have always exercised a supervisory power over the management of trust estates and the conduct of trustees, but they have never, save in exceptional cases, asserted the power to dissolve a trust before the expiration of the term for which it was created. The exceptions have been rare, and have always belonged to a well-defined class, where the interference of the court did not disturb or destroy the trust scheme, but was rendered necessary in order to prevent its entire failure. Trusts which have become impossible of performance because of the existence of conditions not anticipated or foreseen when they were created, are of this character; also marriage settlements, where the marital relation has been annulled; and other kindred cases. There was also a larger class, where the court would decree dissolution of the trust upon the application of all the interested parties, but this was strictly limited to cases where the whole design and object of the trust scheme had been practically accomplished, and all the interests created by it had...

To continue reading

Request your trial
41 cases
  • R. W. Owen, J. G. Owen, Frank G. Owen, A. R. Owen, Rust-Owen Lumber Company
    • United States
    • Missouri Supreme Court
    • June 16, 1924
    ...722; Smith v. Smith, 70 Mo.App. 448, 451; Ewing v. Shannahan, 113 Mo. 188, 196; Newton v. Rebenack, 90 Mo.App. 650, 657; Cuthbert v. Chauvet, 136 N.Y. 326. (c) A court equity will not undertake to grant relief to parties who are able to secure the relief to which they are entitled without t......
  • Brickell v. Di Pietro
    • United States
    • Florida Supreme Court
    • October 11, 1940
    ... ... 402, 106 A. 326; ... Maher v. Maher, 207 Ky. 360, 269 S.W. 287; ... Perabo v. Gallagher, 241 Mass. 207, 135 N.E. 113; ... Cuthbert v. Chauvet, 136 N.Y. 326, 32 N.E. 1088, 18 ... L.R.A. 745; Robbins v. Smith, 72 Ohio St. 1, 73 N.E ... 1051; In re Baughman's Estate, 281 Pa ... ...
  • Windsor v. Barnett
    • United States
    • Iowa Supreme Court
    • February 16, 1926
    ...E. 200, 84 S. C. 464, 29 L. R. A. (N. S.) 939;Sears v. Choate, 15 N. E. 786, 146 Mass. 395, 4 Am. St. Rep. 320;Cuthbert v. Chauvet, 32 N. E. 1088, 136 N. Y. 326, 18 L. R. A. 745;Mauldin v. Mauldin, 85 S. E. 60, 101 S. C. 1;Piegler v. Jeffries, 121 S. E. 783, 128 S. C. 254. We are of the opi......
  • Windsor v. Barnett
    • United States
    • Iowa Supreme Court
    • February 16, 1926
    ... ... Ore. 585 (230 P. 554); Steele v. Smith, 84 S.C. 464 ... (66 S.E. 200); Sears v. Choate, 146 Mass. 395 (15 ... N.E. 786); Cuthbert v. Chauvet, 136 N.Y. 326 (32 ... N.E. 1088); Mauldin v. Mauldin, 101 S.C. 1 (85 S.E ... 60); Piegler v. Jefferies (S. C.), 121 S.E. 783. We ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT