Patterson v. McCunn , 46 How. Pr. 182 ( 1873 )

Ingraham, P. J.

This action is brought for the partition of the real estate of the late John H. McOunn. It is founded on the supposed invalidity of certain trusts in the will, which are claimed to be void or contrary to the provisions of the statute relating, to the suspension of the power of alienation.

It is by no means clear that the clause in the will referred to is void. Certainly, the provision for the wife, if by itself, would not be ; and as that embraces half the estate, that should be preserved if it could be done consistently with the decisions of the courts on this subject, even if the gifts to the brothers are objectionable.

Hor is it any more clear that the directions as to the sale of the property, after six years, is such a limitation of the power of alienation as to render the whole trust void. Such a provision may be valid as a power of sale merely, and would not destroy the whole intent of the testator in disposing of the bulk of his estate; but I do not deem it necessary on this motion to decide the questions which have been so ably argued as to the validity of these trusts. There are other considerations which must control in the decision of this motion.

In actions for the partition of property, the right of the plaintiff to be an owner should be clear to warrant the court to take the custody of the property out of the possession of those having an apparently valid title. The executors and trustees are vested with that right under the will, while the claim of the plaintiff is doubtful and uncertain.

So far as relates to .the personal estate, the present action has no connection therewith, and there can be no order made in relation thereto.

If the trustees appointed by the will are incompetent or improvident, the supreme court, on a proper application, has power to remove them and appoint others to carry out the trust. Ho such relief, however, could be given in this action, while the prayer of this application, if granted, would virtually have that effect. On a proper application to the surrogate, also, the executors may from time to time be compelled to account, and when proper proceedings are taken in this court, an order may be made requiring the proceeds of the estate from time to time to be deposited in some suitable trust company, after making provision to pay the claims against the estate, which seem to be constantly accruing.

With these general remarks as to the propriety of granting such a motion in such an action, I will examine briefly the affidavits on which this motion is founded.

They are in a great part merely on information and belief as to the conduct of the executors, and the mode of living and family expenses of one of them. Some statements are made apparently on personal knowledge.

In either case, however, the allegations made on the part of .the plaintiff, material hereto, are fully and unequivocally denied on the part of the defendants, and the weight of testimony is quite as strong on the one side as the other. There is no propriety in granting the motion on such a state of testimony, nor in trying such a question in this action on conflicting affidavits.

s There might, perhaps, be some necessity for it if no other relief existed; but while that may be obtained in various ways, so as to protect the estate from being wasted, I am satisfied this motion should not be granted.

Motion denied with ten dollars costs.