#### The Market and Fulton National Bank of New York, Plaintiff, *v.*The Nassau Trust Company of the City of Brooklyn, Isabella Love, as Administratrix, etc., et al., Defendants.

(Supreme Court, New York Special Term,

June, 1899.)

Trust — Converted by a death, into a legal estate charged with an annuity—Pledge of an executor for his own benefit — Priority.

A testatrix devised her residuary personal estate to her husband and her sister, as executors, in trust to pay from the income an annuity to her aunt and to pay the remainder of the income to themselves, -and then directed that after the death of the aunt the. corpus and any increase should be equally divided between the husband and sister except that, in case either died before the aunt, the survivor • should take the whole. The sister, who never qualified as executor, died before the aunt and husband. The husband, stating that he was sole executor and legatee, thereafter pledged for a personal loan bonds which stood in the name of the testatrix. The aunt died after the ■executor, after the loan had been made, and after the husband.

Held, that the trust terminated with the death of the sister and . that there was no basis for the subsequent appointment of a substi- . tuted trustee. That after the death. Of the sister there remained only a legal estate, which was charged with the incumbrance of the annuity; that the husband had power to charge that estate; and that the loan which he negotiated upon the bonds must be paid therefrom as a lien in preference to the claims of other creditors Of the estate' represented by its administratrix or otherwise.

*691Actioh" for the construction of a will.

Tyler *&*Durand, for plaintiff.

Russell & Percy, for defendant Trust Company.

Frank Gr. Wild, for defendant Isabella Love.

Bookstaver, J.

The language of the will which this action is brought to construe is as follows:.

“ Fourth. I hereby give, devise and bequeath all the rest, residue and remainder of my personal property to my executors hereinafter named, in trust, as follows: That out of the income arising therefrom they pay to my beloved aunt, Margaret K. Oox, the sum of five hundred and sixty dollars, annually, so long as she shall live, to be paid to her in equally quarterly payments, and the remainder of the income arising therefrom to my husband, .John Swan, and my said sister Julia, share and share alike, and that after the decease of my said aunt, that said personal property and any accumulation or increase thereof be divided equally between my said husband and my said sister Julia, share and share alike, but in case that either my said husband or my said sister Julia shall die before the decease of my said aunt, then, in that event, I give, devise and bequeath the whole of said personal property to the survivor thereof forever; said property being charged with the said payment of said sum of five hundred and sixty dollars annually to my said aunt as hereinbefore stated.

“ Fifth. I hereby make, nominate, constitute and appoint my said husband, John Swan, and my said sister, Julia Ann Oox, executor and executrix respectively of this my last will and testament, hereby giving and granting to them any and all powers that' may be necessary in order to carry the provisions thereof into effect.”

The will was made in 1815; the testatrix died in 18YY; Julia A. Oox died in 1885; in 1896, John Swan borrowed money of the plaintiff and pledged as collateral certain bonds belonging to the estate and included under the provisions of paragraph fourth just quoted. The plaintiff in this action seeks to have its lien adjudged prior to the lien or claims of any of the defendants and to' have the pledged securities sold and its claim paid.

*692Julia A. Cox never qualified as executrix, and, accordingly, John Swan acted as sole executor and trustee. The bends were .registered, and always remained so,, in the name of Caroline.M.'Swan; but,, at the time they were pledged, John Swan stated to the plaintiff that he was sole executor and legatee under his wife’s will. He died on January 9, .1897, and the annuitant, Margaret K. Cox, died on January 15, 1897. After his death,..the defendant, the Nassau Trust Company,- was appointed substituted trustee in his place on the theory that there was a trust remaining unexecuted.' He died insolvent and the surviving member of his firm made a general assignment on January 27, 1897; and a dividend was paid to the creditors.

The defendants, in addition to the Nassau Trust Company, just mentioned, are Isabella Love as -administratrix, etc., of John Swan; Henry T. Obx,. individually and as executor of the will of Julia A. Cox; and Anna M. Cox, as executrix of the will of John J. Cox. The said Henry T., Julia A., and John J. Cox being the only relatives of the testatrix.

As I construe the paragraphs above quoted, no trust survived after the death of -Julia A. Cox. The will-plainly says ; “ In case that either my said husband or my said sister Julia shall die before the decease of my said 'aunt, then, in that event, I give, devise and bequeath the whole of said personal property to the survivor thereof forever; said property being charged with the said payment of said sum of five hundred and- sixty dollars annually to my ■said aunt as hereinbefore stated.” Here is a studied effort to change the situation and end the trust, upon the. death of either the husband or the. sister, and. language apt and suitable, under the authorities, was selected for that purpose. In Downer *v.*Church, 44 N. Y. 651, the court-says: *“*The provision of the will, as stated. in the case, is that the property is devised to Loren Church,.:subject to the support and maintenance of the widow. This language, does not create a trust', it creates an incumbrance. The title to the property devised'is vested in ChtirCh, charged with-the support of the widow; as an incumbrance. There is no difficulty in his conveying such title as he' has. The plaintiff takes it subject to the charge pontained in the instrument creating' the title,-in the de- ■ fendant.” That language applies exactly to this case. See also Pomeroy’s Equity Jurisprudence, vol. 2, foot note to section 1033, and Buchanan v. Little, 154 N. Y. 147, and Gott v. Cook, 7 Paige, 535.

*693According to the principle of the last two cited cases, the present worth of an annuity of $560 to a woman of the age of Margaret K. Cox could be ascertained, and such present value deducted from the entire-fund, would give the amount of his interest above the incumbrance at any given time. That interest has at all times been greater than the amount'of the loans made by the plaintiff. There is no proof that the annuity was not always paid, but, on the contrary , the inference from facts shown is that it was paid.

My conclusion, therefore, is that, there being no trust to execute, the. defendant, the Nassau Trust Company, has no standing, and also that, under the Circumstances stated, the lien of the plaintiff is superior to the claims of other and unsecured creditors represented by Isabella Loye as administratrix of the assets of John Swan and likewisé to the claims of the other defendants.

Judgment for plaintiff, with costs.