#### Eliza A. Baldwin and Adriance S. Baldwin, by Charles G. Baldwin, their Guardian ad Litem, Plaintiffs, *v.*Peter E. Palen, as Executor, etc., of Lewis N. Stanton, Deceased, et al., Defendants.

(Supreme Court, Orange Special Term,

June, 1898.)

Trusts — Eights o£ remaindermen, to obtain a construction of a will — Estoppel.

Mere remaindermen, after a life interest in. a parcel held by trustees for the benefit of a. son of a testator, and whose mother, a daughter of the testator, a trustee for the son, and herself absolutely entitled to one-half of the estate, executed in her lifetime, both individually and as trustee, an agreement, approved by the surrogate, dividing the estate between herself and the son, which provided that his share should remain in the hands of the trustees, and which acknowledged satisfaction. of all her claims against the • estate, except the parcel in question, are not in a position to *171maintain an action for a construction of the will by which practically they seek to attack the validity of the trust in favor of the son and the acts of the trustees and to oust the surviving trustee, as the rights of the remaindermen, if any, are énforcible at law.

Action for the construction of a will and codicil.

Vanamee & Watts, for plaintiffs.

T. F. Bush, for defendants Palen, as executor, and William G. Stanton.

J. E. Barnes (Thomas Watts, of counsel), for Charles G. Baldwin.

Hirschberg, J.

Lewis N. Stanton died June 2, 1886, leaving his widow, Sarah Alice Stanton, and his children, William G. Stanton and May Stanton Baldwin, his only heirs and next of kin. He left a will dated October 21, 1884, and a codicil dated September 19, 1885. They were both admitted to probate in Sullivan county, June 16, 1886, and letters granted to the executors and trustees, viz., May Stanton Baldwin, Charles W. Rockwell, and the defendant Beter E. Balen. Rockwell died in May, 1893, and May Stanton Baldwin in December, 1893. The latter left a will and codicil which were duly admitted to probate in Orange county, July 17, 1894, of which the defendant Charles G. Baldwin is administrator, with the will annexed, and the plaintiffs are the heirs and devisees. During the lifetime of all the executors and trustees, the estate of Lewis N. Stanton was settled by the surrogate of Sullivan county in accordance with the terms of an agreement executed by the heirs and devisees, and ratified by the adjudication of the surrogate.

By the terms of the will and codicil of Lewis N. Stanton, after certain bequests, an annuity of $800 was given to his widow annually, during life or widowhood. Of the rest of his estate one-half was devised and bequeathed to his daughter May Stanton Baldwin, the mother of the plaintiffs. The other half was dis' posed of as follows: If the conduct of his son William G. Stanton was such when he had arrived at the age of twenty-five years as to show him in the judgment of the executors capable to care for and manage it, the testator gave, devised and bequeathed to him the *172other remaining half of the estate; but in the event that when he 'arrived at the age of twenty-five years his conduct had been such that in the judgment of his executors he has not shown himself capable to care for and manage the remaining half of the estate, said half was given, devised and. bequeathed to the daughter Hay Stanton Baldwin, in trust, for said son, to pay him the income thereof semi-annually, and at his death, the principal to his chil-. dren, if he shall have married' and left any .children him surviving. ' The will further provided that in the event that either of the testator’s children should not marry and leave children them surviving, at the time of his or her death, the gift, devise and bequest of that one should go to the one surviving, forever. The testator further gave to his executors and trustees full power to manage his interest in a certain partnership business; empowered them to adjust and settle all accounts and transactions relating thereto; ■gave them full power and authority to manage any and all of his real or personal estate, and receive all income therefrdm; to sell ■and convey any real or personal property when in their judgment it shall be to the interest of the estate so- to do; to loan the moneys of the estate on good and sufficient securities; to purchase property or an interest in property; to make investments when in their judgment it shall be to the interest of his estate so to do; to pay over the annuity bequeathed to his said wife during their trusteeship; to furnish to his children such sums of money from time to time as shall be necessary for their support and comfort, and to carry into effect his last will and testament, directing them to manage all things to the best interest of the estate, and to take- so much time in closing and settling the same as will Bring about the best results as speedily as possible. By the. terms of the will, the annuity to the widow-was made a lien upon the real estate owned by him at his decease in the village of Oneonta, Otsego county^ New York. By the terms.of the codicil, the annuity of $800 was not only made a lien upon the real estate in Oneonta, but the testator further provided that in the event that the income from said real property should not be sufficient for thiat purpose, it was declared a lien upon his estate generally. The codicil further provided as follows: “And I further hereby declare that my will is that neither of my children Hay Stanton Baldwin and William Gr. Stanton, shall sell, partition, or in any manner dispose of or incumber my said real estate in said village of Oneonta, Otsego county, New York, hereinbefore devised and bequeathed, during the life of either of miy said children, Hay Stanton Bald*173win and William Gr. Stanton, and that in the event of the death of either of my said children aforesaid, the survivor shall receive all the income from said Oneonta property remaining after the annual payment to my said wife, Sarah Alice Stanton, hereinbefore provided for, and it being my will and intention to provide that the income of my said Oneonta property shall, during the life of my said children Hay Stanton Baldwin and William G-. Stanton, be used for their support and benefit for and during their natural lives; and that my executors and trustees during their trust and my said children Hay and William thereafter keep said Oneonta property insured against fire,- and, in case of fire, that the insurance money be used to rebuild the same to the end .that their support and maintenance shall be provided for during their lives, from my said real property situate at Oneonta, Otsego county, New York.”

Upon the trial it was admitted that the testator was seized and possessed of real and personal estate, stocks, bonds, mortgages, cash, promissory notes and other evidences of debt, situate in the county of Sullivan, and elsewhere in the state of New York, in addition to the real estate at Oneonta; that the widow, Sarah Alice Stanton, died November 13, 1887, having received her annuity regularly from the rents and income of the Oneonta property; that the whole of the income of the property remaining after the settlement with the daughter Hay Stanton Baldwin, pursuant to the surrogate’s decree, has been paid over to William Gr. Stanton; that the plaintiffs are infants under the age of fourteen years; that the property remaining after the settlement with the daughter Hay Stanton Baldwin, was managed, cared for and controlled by the trustees during their respective lives; that the said Peter E. Palen is the only surviving one-of the three named as trustees, and that the said William Gr. Stanton was at the time of the commencement of the action about thirty years of age.

These facts so admitted, together with proof given of the settlement before the surrogate of Sullivan county, constitute substantially all the evidence taken upon the trial, excepting that the parties further admitted that disputes and dissensions have arisen between the plaintiffs and the defendants, as to the true meaning, construction, interpretation and validity of the terms, provisions and trusts set forth and created in and by the said will and codicil of the said Lewis N Stanton, deceased; that dissensions and disputes have arisen between the plaintiffs and the said Peter E. Palen as *174executor and trustee as to whether or not the latter has any rights as trustee or otherwise, under said last will and testament, inasmuch as the said William Gr. Stanton is now about thirty years of age, and it is claimed and has been claimed by the plaintiffs ever since the death of said Hay Stanton Baldwin, that the said.Peter E. Palen was acting and handling said " estate contrary to; law and against the letter and spirit of the will; that the defendants Peter E. Palen and William Gr. Stanton deny each and every claim and . contention of the plaintiffs as set forth in the complaint, ¡and deny that the plaintiffs are entitled to any interest or claim whatever in and to the funds and estate of th'e said Lewis N. Stanton, deceased; that they have refused to pay over any of the property, assets or income from said estate, and that said Petér E. Palen has refused and still refuses to take any steps to ascertain by legal adjudication their rights or his interests, or the interpretation and construction of the terms and provisions of the will, although requested so to do by the plaintiffs, and that he, the said Peter E. Palen, resides between one and two hundred miles from the location of the property in question. The complaint sets forth various other claims and contentions on the part of the plaintiffs involving allegations of wrongdoing by the defendant Palen, ¡and of disputes and dissensions between the parties; all of which were denied by 4 lie pleadings and upon the trial and in support of which no! evidence was given. Ho evidence beyond that involved in the foregoing, was given as to the disposition of the one-half remaining ¡after the settlement with May Stanton Baldwin, or as to the action of the trustees at the time when William GL Stanton arrived at the age of twenty-five years, or as to whether or not his sister accepted the trust created by the will, or as to whether or. not a successor was ever appointed after her death, ór as to whether or not the said William Gr. Stanton was married and has children.1

The relief sought by the plaintiffs is the determination of the rights of the said Péter E. Palen; the settlement of the. disputes and dissensions; the appointment of a trustee, if he be held not to' be a trustee; a construction and interpretation of the provisions of the will and codicil; the definition and adjudication of the rights of the plaintiffs in and to the Oneonta real estate, and to the property of the estate of the said Lewis N. Stanton, both real and personal; the determination whether or not .there were any valid and legal trusts created by the will and codicil, and whether or not the alleged power in trust under said will whereby the right of discretion is given to the trustees to pay the half of the property to William GL Stanton *175is good and valid, and if invalid, whether or not the attempted gift to' the said William G-. Stanton does not lapse and revert to the general estate of the testator; and generally that the court adjudge and determine the power and authority of the trustee under the said last will and testament.

It appears from the proceedings in the Surrogate’s Court of Sullivan county, that an agreement was executed by the executors and the children of the testator, viz., May Stanton -Baldwin and William G. Stanton, dividing between said children,- all the property of the estate other than that comprised in the Oneonta real estate. A memorandum of the proposed division in detail is included in the agreement, and said agreement provides that the property taken, by May Stanton Baldwin is to be transferred, to her absolutely, and the property taken for- the benefit -of William G. Stanton is to remain in the hands of the executors and trustees as provided by the will. The decree is dated July 21, 1890, and after reciting the facts of the making and execution of the aforesaid agreement, for the purpose of adjusting the difference in amounts paid to the legatees respectively, and of having a full, final and equal adjustment and division between them, of all the property remaining in the hands of the executors, excepting the Oneonta property, it provides that “ the said agreement, division and transfer of said property being approved by the surrogate, it is now adjudged and decreed that the said conveyance and transfer of said property to the said May Stanton Baldwin shall be valid and effectual and vest in her the absolute title to the property So ■conveyed and transferred to her forever, and that the same is and shall be a full and complete satisfaction and discharge of all her interest and claim in and to the property of said estate and against the said executors thereof, excepting the said real property ”■ at Oneonta. The decree further provides, that the executors shall care for and manage the property left in their hands and set off to the use of William G. Stanton, by the agreement and division as trustee for the use and benefit of the said William G. Stanton, pursuant to said will and subject to the trusts thereby created; and that they shall continue to hold, care for and manage the property at Oneonta, as trustees for the use and benefit of May Stanton Baldwin and William G. Stanton, subject to the duties and liabilities as trustees provided by law or imposed by the said last will and testament. !

I do not think in view of these facts that the plaintiffs are in a position to ask for the construction of the terms and provisions of *176the will of Lewis N. Stanton generally. They are not heirs-at-law or next of kin of the testator, nór are they devisees in the will. Their rights and interests are all enforcib'le at law. They have acquired the fee in one-half of* the Qneonta property subject to the life interest of the defendant William Gr. Stanton, and upon his death without issue, they would take the principal of the estate. But they have no present interest in the estate as such, and make no claim, certainly no proof, that their future contingent rights are in. any way jeopardized by its mode of management. The settlement made by their mother with the defendant William Gr. Stanton is sufficient to prevent them from now asserting that the trust created for him is invalid. She recognized its validity and divided the estate in accordance with its terms, and no ground exists for equitable interference in the absence of fraud, duress, mistake or other fact calling for the application of equitable doctrines: The claim made by the plaintiffs that the codicil suspends the alienation of the Oneonta property for more than two lives seems unfounded. ■ The lien of the widow’s annuity is an incumbrancemerely involving no interest in the property itself. Nor can I adopt the plaintiffs’ construction of the terms of the codicil by which, it is sought to make one-half of the income from that property payable to them since their mother’s death. There seems to he-no ambiguity in the language directing that the survivor of the-testator’s children should receive “all the income.”

I do not intend to. decide that the plaintiffs have not-such an interest in the estate as would entitle them to a voice in its management, and in the selection of a successor to the trustee, and a successor to their mother as trustee of the one-half interest of the defendant William Gr. Stanton. As to the latter, as has been shown, no proof has been made of the existence of a vacancy, .and the-prayer of the complaint does not include the demand for such'an appointment, Nor is any ground furnished for the removal of" the acting trustee under the. will in the absence of all claim that" he1 is not properly caring" for the property in his hands, 'or that" he is in any way imperiling the estate or sacrificing its interests.

The views herein expressed will be found generally supported’ by the cases of Whitney v. Whitney, 63 Hun, 59; Chipman v. Montgomery, 63 N. Y. 221; Horton v. Cantwell, 108 id. 255; and Mellen v. Mellen, 139 id. 210.

I direct that the complaint be dismissed, but without costs.

Complaint dismissed, without costs.