Lahens v. Dupasseur

By the Court,

As was said by Judge Ingraham, .when this matter was previously before the court, “the will gives no authority to sell the property, and under any circumstances the deed was void. If so, the mortgage was equally so.” This disposes of the case; for there is no estate not devised by the will, to which the heir at law could succeed, as in case of intestacy, upon which the mortgage might operate; because, by the express language of the will, the whole residuum of the estate is to be held in trust until after the death of both the daughter and granddaughter of the testator. As the trust is valid and continuous during both those lives, it is idle to talk about Mrs. Lahens or Mrs. Hot taking any part of the principal of the trust property as heir at law, for they must be dead before the trust is to determine. Heither Mrs. Lahens nor Mrs. Hot has or can have anything except a beneficial interest in a trust, which interest, by the statute, is inalienable. (1 Edm. Stat. p. 679, § 63.) The rule of in pari delicto, cited by the defendants’ counsel, has no application. The defendants, equally with the plaintiffs, had notice of the trust. Very likely both mistook the law; but there is no pretense of any fraud.

There must be judgment for the plaintiffs, declaring the mortgage invalid and void.

Ingraham, Sutherland and Cardozo, Justices.]