Page images
PDF
EPUB

In the Exchequer Chamber.-De Medina v. Grove. probable cause. Would the allegations ant in this case has done; if he had in this declaration be sufficient, if this plied to the court, the court would ha were an action for a malicious arrest? said that he must issue the writ at his o Certainly they would not; in such an ac- peril. But it is always competent to tion, the courts require that malice and defendant to apply to the court to be want of reasonable and probable cause lieved from an execution for too much should be alleged. The question sought he has a very simple remedy; he mig to be raised by this argument is, whether either apply to the court before exec an action can be maintained in the ab- tion issued, or he might apply to the cơ sence of an allegation of want of reason- to be discharged after arrest, upon på able and probable cause; for, supposing ment of the sum really due. To say t that there is a sufficient statement of ma- the plaintiff, who has obtained a judgme lice, there certainly are not allegations of the court, may not contest his right sufficient to negative the existence of rea- enforce it, would place him in a wor sonable and probable cause for issuing the position than if he had not recovered jud writ. It is said, that prima facie, a party ment. Therefore, this is a case in whic has a right to issue process, for the pur- it is more necessary to negative the wa pose of commencing a suit; and, it is ad- of reasonable and probable cause, than i mitted, that, in an action against him for an action founded upon the issuing of taking that step, the want of reasonable mesne process; and it is open to a doub and probable cause must be alleged. whether, even if the declaration contained That being so, in the case of a party tak-such an averment, this action would be an ing upon himself to sue out a writ for a apt, or indeed, the proper remedy; in certain sum, in the absence of any record might be contended to be an irregularity ascertaining the amount a fortiori, that merely, because a plaintiff, as has bee must be true of a party issuing a writ upon said by one of the judges during the ar a judgment recovered, which is process gument, would be justified in deliver: for the purpose of enforcing a right already to the sheriff a writ corresponding established by judgment of the court. The facts stated in this declaration are quite consistent with the party having had reasonable and probable cause for issuing the writ; they are even consistent, as was observed by one of the judges during the argument, with the party having had an absolute right to recover the whole sum. The party might, therefore, have had a good right to enforce this execution to the whole amount recovered by the judgment, which is the subject matter of the complaint. I am of opinion, therefore, that judgment has been properly pronounced upon the frame of this declaration for want of an allegation negativing the presence of reasonable and probable cause, or of any words equivalent to such an allega. tion. The grievance complained of, is one which a plaintiff can only present in this form, upon a declaration containing such an allegation. But the declaration is further open to a question, whether it is sufficient in other respects; for a plaintiff has no legal mode that I know of, by which he can litigate the question, how much he is entitled to upon a judgment, except by issuing execution upon it, as the defend-Canada.

amount with the judgment, and leavi the defendant in the action to obtain h discharge upon paying the sum due. Its at least doubtful, whether, if the plaintif delivered his writ to the sheriff without any endorsement at all, he would do wrong.

PARKE, B., MAULE, J., ROLFE, B., Cres WELL, J., and WILLIAMS, J., concurred

Judgment affirmed.

NOTICE TO CORRESPONDENTS. ARTICLE I. "Trusts to apply or to ps over rents and profits of Land, under the N. Y. Revised Statutes," in our next.

Mr. Addison's work on Contracts ha been received.

We shall be glad to hear again from Maine.

We shall attend to the suggestion from

Rew-York

VOL. V.]

THE

Legal Observer.

NEW-YORK, AUGUST, 1847.

TRUSTS TO APPLY OR TO PAY OVER RENTS AND PROFITS OF LANDS, UNDER THE N. Y. REVISED STATUTES.

ART. I.

By the 55th section of the Statutes of New-York, as to Uses and Trusts, (1 R. S. 722,) it was provided that "Express trusts may be created, for any or either of the following purposes:

1. To sell lands for the benefit of creditors.

2. To sell, mortgage or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon.

3. To receive rents and profits of lands, and apply them to the use of any person, during the life of such person, or for any shorter term, subject to the rules pre

scribed in the first article of this title.

4. To receive the rents and profits of lands, and to accumulate the same, for the purposes and within the limits prescribed

in the first Article of this Title."

By the 45th section of the same act, Uses and Trusts, except as authorized and modified in article second, were abolished. Hence, no trust can be created, in this state, for any purpose not embraced within the 55th section just cited. It was provided, however, by the 58th section, that where express trusts shall be created for any purpose not enumerated in the 55th section, but which might be lawfully performed under a power, such trust should be valid as a power in trust, but in such cases no estate rests in the

trustee.

Under the third subdivision of the 55th section, attempts have been made to create trusts to receive rents and profits, and pay

[MONTHLY PARt.

them over to the beneficiary. The legality of such a trust has been much questioned, but the point still remains unsettled, the several cases in which the subdivision has received judicial notice, having been determined upon other grounds. In Coster v. Lorillard, (14 Wend. 265,) a feature of the devise, suspending the power of aliening the property, during, twelve lives, constituted, of itself, an objection which reached the very foundation of the case and controlled its decision. If the directions as to the rents had' pursued the precise words of the statute, the case would not have resulted differently. In Craig v. Hone, (2 Edw. Ch. R. 563,) the trust was held invalid because it suspended alienation for a term of years which might exceed the duration of two lives. In Hawley v. James, (16 Wend. 61,) the testator had attempted to prevent the alienation of the estate until the youngest of his minor children and grand-children, of whom there were more than two, should attain his or her majority; and this was fatal to the trust. It would seem that, in this case, the court was not called upon to decide as to the validity of the trust to pay over the rents, though Mr. Justice Bronson and Senator Maison, both gave their views upon the subject, the latter admitting, however, that it had not been discussed by counsel on the argument. (16 Wend. 266.) Without imputing undue importance to such ministrations, it will not, perhaps, le denied, that the suggestions of counsel might have been useful to those members of the Court of Errors, who, on that occasion, entered upon the discussion of this questions, Kane v. Gott, (25 Wend. 664,) which would have required the consideration of this provision had the rules appli

[blocks in formation]

Trusts to Apply or to Pay over Rents, &c.

cable to real estate been adhered to, was should appropriate the money himself, determined upon principles governing per the cestuis que trust not being competent sonal property, on the peculiar doctrines of to do so, with safety to the fund and adequity conversion. It was not therefore, vantage to themselves. In view of this, necessary, in establishing those trusts, there is great force in the suggestion that said Mr. Justice Cowen, "to institute an the word apply, was used in the sense examination as to their validity on the here given to it, and that it was intended hypotheses that they came within the 55th to indicate thereby the degree of attensection." tion which the trustee should give to the Thus it will be perceived, that what use of the rents and profits, and to exclude, was said in those cases, as to the construc- by implication, all idea of their being tion of the third subdivision, though in- paid over. But if the situation and chateresting and valuable, and on account of racter of the person for whom provision the sources whence it emanated, entitled is to be made by such a trust, are not mato great respect and confidence, necessa- terial, a different signification may often rily failed in determining that construc- be given to the word apply, and another tion, and in giving repose to this question. line of duty become plain to the trustee. The objections urged against the validity Otherwise, as may easily be shown, this of a trust to pay over rents and profits may be stated thus:

First. That under this third subdivision, it was the intention of the legislature to authorize a trust for the benefit of persons under disabilities, whose peculiar situation might be such as to render the agency of a trustee necessary, to secure the proper use of the fund.

Second. That a strict and literal interpetration is to be given to the word apply, used in this section, as contradistinguished from the words pay over to and the like; and that, in all cases, the trustee is to actually appropriate the money to the use of the cestuis que trust, as he, in his discretion, shall think proper.

system would be liable to many objections as cumbersome and expensive, ill adapted to the conveniences of society and repugnant to rights every where recognised as incident to the title in property. In cases where the party to whose use the rents are to be applied is capable of judging of his or her wants, and using the income discreetly, the interest of all parties is subserved, if that income is applied by being paid over. Any other application of it would be unjust and unreasonable. Why should the trustee be required, or permitted, to enhance the expenses of executing the trust, by the performance of unnecessary services? Why should he look into the domestic affairs, superintend the style of dress or manner of living, appoint the place of residence and dictate as to the selection and

Third. That a trust to pay over rents and profits, as known at the common law, not materially differing in principle from formal and passive trusts, was, on the re-employment of the teachers, servants, vision of our statutes, considered unnecessary, calculated to facilitate fraud and was therefore abolished.

These positions, stated in other, and indeed, in various terms, were maintained with great force of argument and fulness of illustration, in some of the opinions delivered in cases above cited. These will be examined hereafter. It is obvious, however, that the soundness of this construction of the subdivision depends, in a great degree, upon the question whether it authorizes a trust for any person, irrespective of his or her condition, or only for a class of persons under disabilities. If the Patter is the true interpretation, there is great reason for holding that the trustee

nurses or physicians of those beneficiaries who may be equally capable of acting in their own behalf, especially when the person creating the trust has recommended no such extraordinary supervision?

The revisers first reported this subdivision to the legislature in these words "to receive the rents and profits of land and apply them to the education and support, or support only, of any person," &c. It was adopted, after the words " or either" had been substituted for the words “ port only."

"sup.

The note of the Revisers upon the 55th section has been frequently used in aid of the opinion that the third subdivision was intended to sanction no trust save for

Trust to Apply or to Pay over Rents, &c.

"the

persons under disabilities. Thus, for in- where, under the third subdivision, the stance, in the first case above cited, (14 trust happens to be for the persons they Wend. 321, Per Savage, Ch. J.) it is said, proceed to designate, the title should ob"In this note, the Revisers have told us viously be in the trustee. But do they what cases the 55th sect. sub. 3, was in intimate that no other or more compretended to provide for, to wit: minors, mar-hensive illustrations could have been ried women, lunatics and spendthrifts." given? Do they affirm that the persons Is this the true spirit of this note? Is it designated, and others like them, are to be at all probable that the Revisers contem- the sole and exclusive objects of trusts un plated its being thus understood? On der this subdivision? Certainly not. the contrary, is it not apparent that the Even when they call these persons language used by them is here taken in general objects of trusts of this descrip too broad a sense, and that too little atten- tion," these words seem to have been used tion is paid to another portion of the note incidentally, and as if to denote the seto which their remarks about the third condary and unimportant relation which subdivision were but subsidiary? they really had to the matter in hand, they are thrown within the parenthesis. The Revisers probably entertained the belief that under this clause the trusts which might be created would generally be for this class of persons, but it may well be doubted whether they intended to indicate the precise objects to which such trusts must relate.

In the note it is said, "The object of the Revisers in this section, (sec. 55,) is to allow the creation of express trusts, in those cases, and in those cases only, where the purposes of the trust require that the legal estate should pass to the trustees." Having stated this distinction between the trusts which may now be created and those which were abolished, or are to be But these suggestions are made under carried out under the doctrine of powers a sense of no little embarrassment arising the real object for which this note was from the circumstance, that there is written the Revisers proceed, for the among all those who have commented purpose of illustration merely, as fol- upon this statute, and differed as to its lows:-"An assignment for the benefit construction, no apparent disagreement of creditors, would in most cases be en- as to the meaning of this note. I may tirely defeated if the title were to remain well hesitate, then, in confiding in my own in the debtor, and when the trust is to re-impressions and deem it advisable to proceive the rents and profits of lands, and ceed in this discussion, upon the assumpapply them to the education of a minor, tion that this subdivision was at first, the separate use of a married woman, or mainly intended for a class of persons the support of a lunatic or a spendthrift, under disabilities, whose education and (the general objects of trusts of this de- support might require the services of a scription,) the utility of vesting the title trustee, to manage the estate out of which and possession in the trustees is suffi- a fund was to be created for their benefit, ciently apparent." if not to superintend directly the use of The only rule here stated, by which we the fund itself. Still I find it difficult to are to determine the extent to which persuade myself into the belief that, origithese several subdivisions were intended nally, such a trust might not be created to operate, is that it must be requisite to for a feme sole as well as for a feme covert, enable the trustee to execute the trust, or that the education that might have that he should have the title to the estate. been bestowed, must have ceased when If the trust can be safely and conve- the beneficiary attained his or her majoniently carried out without this, then it is rity. Why should the legislature, in not an active trust under this section, but must be available, if at all, as a power in trust. Beyond this, nothing is affirmed that can be deemed an exposition of the statute. It is true that the Revisers were satisfied that in the cases put, to wit: an assignment for creditors, and

framing this subdivision, have used words comprehensive enough to include all mankind, if only a special class was intended. Why authorize a trust for the education and support of any person, during the life of such person, when the meaning is any person under disabilities?

Trust to Apply or to Pay over Rents, &c.

Then other purposes, beyond mere education and support, were to be provided for. What purposes are intended?

66

In reverting to the history of this sub-, interests of those whose rights were aldivision, we find that it was amended in ready secured. Legislation in their beApril, 1830, by substituting "use" for half would have been unnecessary. Yet "education and support, or either." The the expounders of this subdivision as authors of this change, by way of recom- amended, who still confine the trusts mending it to the legislature, observe, which it sanctions to the persons defined "The word use includes education and by the Revisers in their original note, insupport and each of them. It will also in- sist so rigidly upon an economical expenclude other purposes which ought to be diture, which ought to be diture, on the part of the trustee, that provided for." nothing beyond a liberal "education and support" can, even now, be furnished! Notwithstanding the difference between the subdivision as it reads at present, and The terms originally employed com- as it read before its alteration, its spirit, prised every thing necessary or proper object and limitations are, with them, the for the class of persons described by the same and have respect solely to a class Revisers in their note. What greater be- who are incapable, on account of their nefit, for example, could a trustee confer disabilities, of receiving benefits except to upon a child during its minority, than a a certain narrow extent, and are unfit, suitable education, which includes not we are told, to be intrusted with money only intellectual and moral culture, but for any purpose whatever. They would physical training? By support" we are make it the duty of the trustee to dole to understand all those supplies which out each farthing of the fund with prushould be dispensed with a liberal or dent fingers. According to Ch. J. Sasparing hand, to the cestui que trust, ac- vage, "he is to judge of the propriety of cording to his or her social position, fixed the expenditure;" says Senator Young, habits or capacity for enjoyment. In car-"he is to deal it out with circumspection;' rying out this provision as it stood before if Senator Maison is right, the rents are the amendment, the trustee would have to be applied, "as the trustee shall confurnished to the objects of his care the food sider the necessity of the cestui que trust and raiment and the shelter, which their may require;" while the late Ch. J. condition in life required, with nursing Bronson insists, that "the trustee is to exand medical attendance in sickness. He ercise a fiduciary office, a kind of guarwould have added moreover, the endear-dianship in the expenditure of the ments and consolations of a home, with money.” all the other varied but indefinable means of promoting comfort and happiness, and this too, with an expansive discretion, so to speak, adapted to the character of the beneficiary and the extent of the trust fund. It is difficult to perceive how the kindest father or husband, or friend could hope to effect more for one of this class, by the use or expenditure of money, than was allowed by the statute before its amendment. As to such persons every thing beyond "education and support" would be matter of fancy, unsubstantial benefits, ministering to artificial wants or luxuries, perhaps, equally injurious and unnecessary. The legislature did not sit in solemn deliberation intent upon promoting these. So too, we are bound to conclude that in enlarging the subdivision referred to, the legislature had in view some object other than promoting the

If all this be so, then it is impossible, in my judgment, to give any effect to the amendment of April, 1830, or to accomplish more for the beneficiary now, than was proper before that amendment went into operation. The other purposes which the Revisers say were to be provided for, are smothered, or utterly excluded by this interpretation.

It becomes us to construe this provi sion in such a manner, as to give force and effect to the declared and obvious purpose of the legislature.

In the case of Coster v. Lorillard, before cited, Chief Justice Nelson gave to this amendment its true significance. He thought that the original difficulty consisted in confining the trust to two specified objects, "education and support," excluding by implication every other; that by striking out this limitation, the ob

« PreviousContinue »