Wood v. Burnham

Citations

• 6 Paige Ch. 513
• 1837 N.Y. LEXIS 251
• 1837 N.Y. Misc. LEXIS 28

Syllabus

<p>Where the testator, who died previous to the adoption of the revised statutes, devised his estate to his executors as trustees to receive the rents and profits thereof for the use of his children for the term of six years, and then to divide the same among his children or their issue then living and to give conveyances therefor; and directed that in each deed or conveyance to any of the testator’s children there should be inserted a clause limiting the grant, or interest to be conveyed, to the grantee for life, with remainder over to thé right heirs of such grantee, their heirs and assigns forever; Held, that the executors or trustees were bound to convey the shares of the several chil* dren of the testator in such a manner as to give to the first taker an estate for life only, with remainder to such persons as might be his legal heirs at the time of his death ; according fo the provisions of the revised statutes abolishing the rule in Shelly's case.</p> <p>The rule in Shelly’s case is not applicable to the case of an executory trust, which is to be carried into effect by a conveyance from trustees of the legal estate, and where it is apparent from the will or instrument creating the trust that the testator or donor only intended to give a life estate to the first taker, and that the heirs of such first taker should have the remainder in fee as purchasers. And in such a case the court of chancery will direct such a conveyance to be made as will most effectually carry the testator’s intention into effect, so far as it can be done consistent with legal rules.</p> <p>It seems a trustee is not botfnd to appeal froto a decision against the rights claimed by him in favor of his cestui que trust who is not a party to the suit. But where the decision of the court below is in favor of such cestui que trust whose interest is represented by the trustee, if the adverse party appeals from the decree, it is the duty of such trustee to endeavor to sustain the decision of the co