The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-10-28

L
and imposed no duty upon them, and In no wa
UNITED a6a Sttsres he PstISn r.
aTs Of Tho op IL ,S therefore that II
separate powers upon the V" trustees s "S and the
sSse& o mf d viii whSst
the disposal Of his estate; that the whole ar
te one ntn and
one one Of selection lection ''n'' y" '"' "'''''' ~
the zee
pslss%ss,. T. SSss %sy eoSS ss
in, equity for the benefit q parties Inter.
ested; unless is execution Or non.ex;
no. w, 81 s sssss 'n Where
sd exclude others tho persons dsss
mated as the objects Of tho power. The power
Ge t ~ T the Win e the Il
valid unless It can be enforced By The courts at
absolutely to the trustees, there is no person
tie estate or maintain an action 70 compel pei the
Is f the sts s ~ hf fSs will
s;%;;s y Tho sssssss Fes%s
sps t. d sss nt h hs
gF hm hf a said rfS saSs
sarGs crm peiSSns 5 s :? The the Gs
vision seems to have arisen from the tcstators
TsSts UPON any Sua iS' person e or boaS
power OF selection and Exclusion With Ire regard
to destined objects and the duty there i'm
the Court. But the statute presupposes that a
power OF selection must DO 30 defined In re-
to hs GSsso 4' sy Ssy sns
s IsSssS Ss 81 the % fssd sss Williams.
in Tiff p tst SSist st General
that TIE Il psw SSpt Contained IN
the clause in question comes under tho head
in b d9nfa sas
that to render power in trust valid the same
o rs 81 Sc % Kss sYSt in the
provision of the statute to the effect that il the
court Of equity will decree H ts execution
benefit , equally 81 all persons dssisnated: and
whom the power is to be executed It's execu-
ton deyolyes upon the court isec. 100, 10ll.
failure Of t purpose whem it's sabect
this case execution q the power could not be
trust IS %s o%s in yhsh soms peF
to part Of designated fund anG can Conn.,
mand its conveyance to them. and in case such
and Wt
the demand. In this case the testator devolyed
npon his executor the duty OF soliciting the
beneficiary. and there ia no person who has the
right to enforce that duty or demand any part
OF the estate 10 case the executors refuse or
vested in the trustees cannot be controlled or
enforced; and whether the provisions OF the
ed as creating trust or power in trust. they
are in either case void
The judgment must be affirmed.
THE DISSENTING OPINION.
In his minority opinion Judge Bradley nys |
It ts Plainly that the tssstor IN
cred ana and that IN the 'V sHsnt
only that it should by the trustees be deemed
s sss adPy to q the sdqe
it less than the whole Of such estate. would
there be any occasion to seek charitable Or
fund or any portion q it. It is urged that the
is thHt e. tseiectlon end
silt within the import Of the language en-
While the test Of expediency Or tnexpediency
was lett to the discretion Of the executors and
trustees. they could not consistently with the
BY the will. have applied any part OF the
fund to the purposes Of the general charity
or reason that it was inexpedient to apply It
se And at the exercise me 81 dsra
i Sa{ the 5svs% Surpase nisrgSss
alton. it IS the intent Of the donor so made to
appear that properly measures the discretion;
not the opportunity for it's unfathful execu-
ton found in It's discretionary character. The
IS primary and distinct from that for general
&c.
not % upon f the cha
AID 'h Tssn to would om haGe o bssq tat
? !; tn the one case it was within the power
hey could not. But in the latter case they.
could hane rendesd ths
PROVISION ineffectuol. and. for tho purposes Of
uness the un sd
which the ultimate limitation OF it
vas dependent. it .wonld not be, i'm
hat event only. would an enforeiible Character
tue testste
These views led to, the conclusion that the
sna s pns s h sq s fs TSs
0 the executors and trustees were valid and,
s the consequence, the NUN purpose OF the |
ction must fail. | n
When the plnintiff commenced this action it
lterior provision Of the thirty-fth article Of 7
no will TO prevent the application Of por;
,lrposes there mentioned But as the exccu- n
,rs and trustees aftorward made a dntormin- q
ton which would prevent the application Of y
ny part Of tho fund to those objects and pur- 4
oses no relicfin that respect is now essen y
al. and tho only purpose for, which further !,
as relation to the. question Of costs. y,
hch wa think should. on behalf OF the II
10 testator. The Judgment OF tho court below +
lould therefore be- reversed and the com u
aint dismissed with costs in that and this
>ondents. payable out of the estate. O.