Note on Vesting.

there is no vested interest until the death of the widow, and no "gift" to any one but her until then.

Is not this the logical result of so construing the clauses of the will in question?

It is almost needless to add, that courts always, if it can consistently be done, construe wills to prevent intestacy; and remainders as vested rather than contingent.

NOTE ON VESTING.

See also Betts v. Betts (4 Abb. New Cas. 317). The following decisions further illustrate the rule.

"After the decease of my said sister, Polly Carter, I give and bequeath said $2,000, hereinbefore devised to my sister, Polly Carter, to the lawful heirs of my brother, Medad Frisbie, in equal proportion." This bequest is not void, but the legacy did not vest until the death of Frisbie, the interest accruing thereon after the death of Polly Carter, and before that of Frisbie, going to the residuary legatee. Cushman v. Horton, 59 N. Y. 149; rev'g 1 Hun, 601; S. C., 4 Sup'm Ct. (T. & C.) 103.

Lands were devised to the testator's nephew for life, and upon his death to his male heirs which he now has, or may have hereafter. The sons living at the death of the testator took vested remainders, subject to open and let in after-born sons, who took vested interests on their births. Conklin v. Conklin, 3 Sandf. Ch. 64.

A remainder given to the children of A., with habendum clause to the heirs of A., gave them a vested remainder at the testator's death. Rogers v. Rogers, 3 Wend. 505.

A bequest of the income of an estate to testator's children until the youngest child shall become of age, and then the estate to be divided between them, creates a vested interest upon the testator's death. Van Wyck v. Bloodgood, 1 Bradf. 154.

A grant to A. for life, and after his decease to his heirs and assigns forever, gives to A.'s children a vested interest, although liable to open to let in after-born children. Moore v. Littel, 41 N. Y. 66.

An estate is vested where there is a person in being who will take at present if the precedent estate should now terminate. Sheriden v. House, 4 Alb. Ct. App. Dec. 218.

A gift of the principal, upon the death of the tenant for life, creates a vested interest in the legacy upon the death of the testator. Barker v. Woods, 1 Sandf. 129.

When the gift of a legacy is absolute, and the time of payment

Note on Vesting.

only postponed, the legacy vests upon the death of the testator. Patterson v. Ellis, 11 Wend. 25.

A bequest to a minor of the interest of a certain sum, said sum to be paid to him on his attaining the age of twenty-one, creates a vested legacy. Wayman . Ringold, 1 Bradf. 40.

After a bequest to a tenant for life, the will gave upon her death the residue to her children, to become vested upon their becoming of age,-Held, that a child becoming of age before the death of the tenant for life, had a vested interest in the legacy. Ex parte Turk, 1 Bradf. 110.

From and after the decease and death of my beloved wife, I give, &c., “to all my children and to their heirs and assigns, to be equally divided share and share alike; and should any of my children die and leave lawful heirs, such heirs to receive the parent's portion," -Held, that the estate vests at the testator's death in those who survive him. Livingston v. Greene, 52 N. Y. 118.

The will of the testatrix devised certain real estate to trustees, in trust, to pay the income to her grandson during his life, and to convey the same to his lawful issue living at his death,-Held, that the children took a vested remainder as they were born respectively, which remainders were liable to be divested by death in the lifetime of the tenant for life, and were subject to open to let in after-born children. Williamson v. Field, 2 Sandf. Ch. 533.

The will of the testator, after several bequests, gave the residue of his estate to his executors in trust, to pay the interest to two brothers and two sisters during their "joint lives," and after their "several deaths" to divide the said estate among their children. In case of any of the brothers or sisters dying, their portion of the income to go to their children. The interests of the children did not vest, but were future and contingent, depending upon surviving all the specified brothers and sisters. Colton v. Fox, 67 N. Y. 348.

The testator made a will which contained a devise to the executor in trust, to pay the income of the estate to his brother, and upon his death to his two sisters, and upon their death the whole estate to pass to the child or children of one of his sisters, or, in the case of her dying without issue, to Columbia College. Under this there is no vested estate in the remainder until the death of the tenants for life. Knox v. Jones, 47 N. Y. 389.

After a devise to a tenant for life, followed the words "then to be equally divided amongst her now surviving children, or any of them that may be alive at her decease, or to the heirs of any that may be dead at the time of executing this, my last will." The word executing, is intended to refer to the time when the will takes effect,

Roosevelt v. Roosevelt.

by vesting the estate in possession at the death of the tenant for life. Scott v. Guernsey, 48 N. Y. 121.

A gift which will vest under these rules is not prevented from vesting by the fact that it is in trust (Van Wyck v. Bloodgood, 1 Bradf. 154, 175). Nor by the fact that it is subject to open and let in after-born children. Sheriden v. House, 4 Abb. Ct. App. Dec. 218; Moore v. Littel, 41 N. Y. 66.

ROOSEVELT v. ROOSEVELT.

N. Y. Superior Court; Special Term, November, 1878.

LIABILITY OF TRUSTEES FOR INVESTMENTS.

Where, under a will, the investment of the funds of the estate is coinmitted in general terms to the discretion of the trustees, the measure of care to be exercised by them in executing the trust is the same as a prudent owner of property would take of his own, if making a like investment for beneficiaries selected by himself.* If such trustees so acted in the administration of the trust they will not be liable for losses which ordinary sagacity could not prevent. The mere fact that the surrogate's decree setting apart the securities for the benefit of the plaintiff as a cestui que trust, was made on his consent, does not preclude him from holding the trustee liable for negligent investment.

If the trustee has not exercised due care and good faith, the court may decree that he keep the property and make the fund good.

Trial by the court.

This action was brought by Charles Y. Roosevelt against James A. Roosevelt, as surviving trustee for the said Charles Y. Roosevelt, for alleged imprudence, negligence and carelessness in loaning trust funds, and in the performance of his duty as trustee.

James I. Roosevelt died April 5, 1875, leaving a last will and testament, appointing James A. Roosevelt and Theodore Roosevelt executors and trustees

* See Ludington's Petition, 5 Abb. New Cas. 307.

Roosevelt v. Roosevelt.

thereof. Said will was admitted to probate April 15, 1875, and said executors duly qualified and entered upon the discharge of their duties.

The fifth clause of said will provides as follows:

"Fifth. All my personal estate not otherwise disposed of I give to my executors or such of them as may qualify, and the survivors and survivor of them, in trust to divide the same into as many shares of equal value as I have children living at my decease, and to set apart one of such shares for each child, to be invested in the name of my executors as trustees for each child respectively, and upon the further trust to receive the interest and income of each share, and apply the same to the use of such child during his natural life, and on his or her death to assign and transfer his or her share to his or her issue, then living, according to their stocks, and if none, then to the brothers and sisters then living of such deceased child.

August 13, 1875, the said executors and trustees loaned to one Adams from the general fund of the personal estate which had been reduced to cash, $80,000, on his bond, payable May 15, 1881, and bearing interest at the rate of seven per cent. per annum, payable on the 15th days of September, January and May, and taking as security for said loan a mortgage on certain improved real estate situate in the city of New York. Said mortgage provided that the mortgagor was to keep the buildings on the mortgaged premises insured, but did not contain any tax and assessment clause. In 1876 the estate was divided, in accordance with the directions contained in the will. The Adams mortgage was valued at par, and the mortgaged premises at $140,000, and was set off as a part of the share to be held for the benefit of plaintiff who was a party to such proceedings, and made no objection to such valuation or to setting off said mortgage to his share.

The interest that became due on said mortgage Jan

Roosevelt v. Roosevelt.

uary 15, 1877, was not paid, and on March 15 following the principal became due, by reason of such default, and soon after the mortgagor became insolvent. The trustees then entered into negotiations for the purchase of the premises by third parties, and the payment of arrearages of interest, taxes, and insurance, and a part of the principal. About October 1, 1877, the trustees instructed their attorneys to foreclose. The suit was commenced November 1, 1877, and the property was sold under decree in foreclosure April 24, 1878, and was bought in by the defendant for $75,000 (his co-trustee having died February 9, 1878), leaving a deficiency of $21,048.79, the amount then due for principal, interest, taxes, insurance and costs being $96,048.79. Upon such sale, the defendant took a deed of the premises to himself as trustee for the plaintiff, and paid the arrearages of taxes and the costs of foreclosure, amounting to $6,402.12, and charged them against the principal of the trust held for plaintiff.

George H. Yeaman (Kurzman & Yeaman, attorneys), for plaintiff.-I. The property was insufficient security for the loan when made. It is conceded that a trustee is not an insurer or guarantor, but mere good faith in the narrow sense of the absence of any intent to defraud is not enough. Good faith, in the legal sense, implies due diligence, and here the testimony shows that such diligence would have disclosed a tolerably equally divided opinion. In such a case, the trustee is not justified in accepting the high estimate, and disregarding the warnings of danger. The plaintiff is therefore entitled to have his estate, principal and income, made whole.

II. There are authorities that the trustee may be required to keep the property as bid in by himself, and account to the cestui que trust for the mortgage and interest (Burtis v. Brush, 5 N. Y. Surr. [Redf.] 448;

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