Weeks v. Frankel

• Decision Date: 25 January 1910
• Citation: 197 N.Y. 304,90 N.E. 969
• Parties: WEEKS v. FRANKEL.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 304

90 N.E. 969

WEEKS

v.FRANKEL.

Court of Appeals of New York.

Jan. 25, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Submission of controversy on agreed facts pursuant to Code Civ. Proc. §§ 1279, 1281, between Charles M. Weeks, as trustee under the will of George W. Weeks, deceased, and Julia Frankel. Judgment for defendant (128 App. Div. 223,112 N. Y. Supp. 562) and plaintiff appeals. Reversed, and judgment ordered for plaintiff.

See, also, 130 App. Div. 888,114 N. Y. Supp. 1150.

1. TRUSTS (s 242*)-DESIGNATION OF TRUSTEE-EXECUTION BY SURVIVOR.

Real Property Law (Laws 1896, c. 547) s 121, provides that a power may be vested in any person capable of holding, but cannot be exercised by a person not capable of transferring, real property, and section 154 declares that where the consent of two or more persons to the execution of a power is requisite, all must consent, but if before its execution one or more die, the consent of the survivor or survivors is sufficient, unless otherwise prescribed by the terms of the power. Testator, after appointing his son and his friend C. as executors and trustees, provided that on the death, resignation, or refusal to serve of both, he appointed a trust company as executor and trustee. Held, that so long as there remained one of the trustees still living and acting with capacity to hold and transfer real property, there was nothing to prevent the execution by such survivor of a power of sale given by the will.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. s 349; Dec. Dig. s 242.*]

* For other cases see same topic and section NUMBER in Dec. &. Am. Digs. 1907 to date, & Reporter Indexes

2. TRUSTS (s 231*)-MANAGEMENT OF ESTATE-CONFLICTING INTERESTS.

Testator devised certain real estate in trust to pay the income to his son until the son's eldest child became 21 years of age, and then to pay the income to the use of all of his son's children until the eldest arrived at 25, when the trust was to terminate, and the property be divided among such children. Testator appointed the son and another executors and trustees, with the right of survivorship, and empowered the trustees and their successors to sell any of the property devised to them, and to hold the proceeds in the place of the property sold. Held, that the son's interest did not conflict with the rights and interests of his children so as to prevent him, in the exercise of discretion, from selling the trust property as surviving trustee.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. ss 330-335; Dec. Dig. s 231.*]

* For other cases see same topic and section NUMBER in Dec. &. Am. Digs. 1907 to date, & Reporter Indexes

3. TRUSTS (s 159*)-TRUSTEE AND BENEFICIARY.

A trust contemplates the holding of property by one for the benefit of another, and hence the same person may not at the same time be both sole trustee and sole beneficiary of the same interest.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. s 206; Dec. Dig. s 159.*]

* For other cases see same topic and section NUMBER in Dec. &. Am. Digs. 1907 to date, & Reporter Indexes

4. TRUSTS (s 231*)-CONSTRUCTION-TRUSTEE.

Testator devised certain land to trustees for the use of his son until his oldest child became came 21 years of age, then in trust for the son's children until the oldest became 25 years old, when the trust was to terminate, and the land be divided among the children. Testator appointed the son and another executors and trustees, with the right of survivorship, and conferred on them a discretionary power of sale. Held that, the co-trustee having died, the son's interest in the real property became a legal estate under Real Property Law (Laws 1896, c. 547) s 72, providing that every person who, by virtue of any devise, is entitled to both the actual possession of real property and to the rents and profits shall be deemed to have a legal estate therein, subject to the same conditions as his beneficial interest, so that the son did not hold the property in trust for himself, but only in trust for his children after the oldest became 21 years of age until the trust was terminated, and hence it was no objection to his exercising the power of sale that he was sole beneficiary and trustee.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. ss 330-335; Dec. Dig. s 231.*]

* For other cases see same topic and section NUMBER in Dec. &. Am. Digs. 1907 to date, & Reporter Indexes

Burlock E. Rabell, for appellant.

William Rosin, for respondent.

HAIGHT, J.

The plaintiff entered into an agreement, in writing, to sell to Louis Frankel the premises known as No. 130 Hooper street, in the borough of Brooklyn, for the consideration of $11,625, upon which contract Frankel deposited the sum of $1,000 on account of the purchase price. Thereafter, and on the day fixed by the parties, the plaintiff tendered a duly executed deed of the premises to the defendant, Julia Frankel, to whom the contract had been assigned by Louis Frankel, and she refused to accept the same, on the ground that the plaintiff could not convey a good marketable title to the premises under the power of sale given in the will of George W. Weeks, deceased, for the reason that the plaintiff was the sole beneficiary of the income of the trust estate until his oldest child becomes of age, and the sole surviving trustee under the will.

George W. Weeks died seised of the premises in question, leaving a will which has been duly proved and admitted to probate, which, so far as is now material, provides as follows:

‘Second. I give, devise and bequeath all my real estate wheresoever situate to my trustees hereinafter named, or to their successors, in trust, to collect the rents, issues, profits and income thereof and after expending therefrom such amounts as may be deemed necessary by them in keeping the said premises in good order and repair and properly insured against loss and damage by fire and after the payment of all taxes, Croton Water rents, charges and assessments that may be levied thereon, to pay the remainder of such rents as and when collected to my son, Charles M. Weeks, until my oldest grandchild me surviving shall arrive at majority or until my said son shall die, whichever event shall first occur, and thereafter and until my oldest grandchild me surviving shall arrive at the age of twenty-five years, or shall die, whichever event shall first occur, to pay the remainder of such rents as and when collected to my grandchildren in equal shares, whether born before my death or at any time prior to the termination of the trust, the issue of any grandchild who may have died prior to the termination of this trust to take the share to which his or her parent would have been entitled if living. Upon the termination of this trust, I give, devise and bequeath the said real estate to my grandchildren, share and share alike, whether born before my death or at any time prior to the termination of the trust, the issue of such as may have died to take the share to which his or her parent would have been entitled if living.’

‘Fifth. In case my son, Charles M. Weeks, or his wife, or his family shall immediately upon my decease so elect, he or they shall be entitled to live in and occupy the house No. 130 Hooper Street, Borough of Brooklyn, City of New York, and shall have the use of the household furniture therein free of rent or charge.

‘Sixth. In case no such election shall then be made and my Trustees shall deem it advisable so to do, they are hereby authorized and empowered to rent the said house furnished and to determine what proportion of the amount of the rent so received shall be considered as rent for the use of the said furniture.

‘Seventh. I authorize and empower my executors and trustees and their successors in their full discretion to sell any or all of my real or personal property at public or private sale and upon such terms as they shall deem most advantageous and desirable, and to make, execute and deliver good and sufficient deeds and other instruments to carry such sale or sales into effect, and to invest and reinvest the proceeds thereof in such securities as they shall jointly agree upon, and I direct that the proceeds thereof shall take the place of the property sold.

‘Ninth. I hereby nominate and appoint my son, Charles M. Weeks, and my friend, Michael J. Collins, executors and trustees of this my last will and testament and direct that neither of them shall be required to give any bond or bonds or other security as such executor or such trustee as aforesaid, whether because of nonresidence or for any other cause or reason. In the event of the death, resignation or refusal to serve of both of my said executors and trustees hereinabove named, I hereby nominate and appoint The United States Trust Company of the City of New York executor and trustee.’

Charles M. Weeks and Michael J. Collins both qualified as executors and trustees under the will, and Collins continued to serve as such until his death, which occurred on the 20th day of January, 1905, thus leaving Charles M. Weeks the sole surviving trustee. Charles M. Weeks is a son of the testator, and has two children living, his only issue, who are Kenneth S. Weeks, born June 23, 1892, and Charles M. Weeks, born July 10, 1899; Kenneth being the oldest grandchild of the testator. No controversy arises with reference to the power given to the executors and trustees to sell and convey the premises in the exercise of their discretion; the sole contention being that the plaintiff, being a beneficiary of the income under the trust, and also a sole surviving trustee under the will of his father, cannot, as such trustee, execute the power of sale given in the will.

Under the real property law (Laws 1896, c. 547), which was in force at the time of the testator's death, ‘a power may be vested in any person capable in law of holding, but cannot be exercised by a person not capable of transferring real...