Magoffen v. Patton

No objection is raised in this case to the validity of the -trust declared by the fifth clause of the will in relation to the fund of twenty thousand dollars, as one not authorized by the revised statutes ; and I do not suppose that any such objection could prevail if taken. There seems to be but one possible ground for such an objection to rest on, viz., that the beneficiary or cestui que trust is herself a trustee. But the will is susceptible of a construction to exclude her from being considered a trustee. The “ executors” are made the trustees, and there are three named as such ; whilst the cestui que trust, the defendant, is called in the will “ executrix.” By giving to the will a limited and strict construction in this respect, she is not a trustee of the fund for her own benefit.

*69But the great point to be determined is, whether the gift is not of such a character as, absolutely, to vest the whole fund of twenty thousand dollars in the defendant, as a legacy, notwithstanding the declared trust 1 It seems to me not to fall within the principle of Adamson v. Armitage, Cooper Ch. C. 282; Maskelyne v. Maskelyne, Amb. 750; Robinson v. Dusgate, 2 Vern. 181; Hixon v. Oliver, 13 Ves. 108, and that class of cases, where general words are used, which amount to a gift of the entire fund in the first instance, and are then followed by directions concerning the investment and the future disposition of the property by the legatee, without any express limit to the interest which the legatee is to take ; for, in this will, the defendant’s beneficial interest is expressly limited to the income during her natural life ; and, “ over the principal sum she is to have no other interest or control than that of disposing of it by her will.” This is a mere power of appointment ; and the rule is, that where a particular estate or a limited interest is expressly given, its enlargement, by implication from such a power, will not be permitted: Roper on Leg. 430.

In Nannock v. Horton, 7 Ves. 391, the principle may be found which governs this case; and, likewise, in Bradley v. Westcott, 13 Ves. 445. Upon the authority of these cases, I am of opinion this defendant cannot claim to have the twenty thousand dollars paid over to her as a legacy or a gift. It must remain in trust, as the will directs, and she can dispose of it only in the manner therein designated.

But, suppose she does not execute the power, and makes no disposition of the fund by her last will and testament (and this power is not imperative on her) what then is to become of the money ? The testatrix, in the present will, has made no specific disposition of it. in that event; consequently, it remains a part of her estate, and passes by the devise and bequest of the residue. Being personal property, the residuary clause of the will embraces it: 2 Roper on Leg. 453; and, unless the defendant, at her death, shall leave a will, giving it a different direction, I am of opinion it will then go to her personal representative. Decree accordingly. The costs of this suit to be paid out of the residuary estate.