WILLIAM PONSONBY FURNISS and GRACE LIVINGSTON FURNISS, Respondents,
SOPHIA R. C. FURNISS and MARGARET E. ZIMMERMAN, Individually and as Trustees under the Last Will and Testament of WILLIAM P. FURNISS, Deceased, and CLEMENTINA FURNISS, Appellants, Impleaded with ARTHUR V. GOODACRE, as Administrator, etc., of LOUISE M. FURNISS, Deceased, and ADELE C. FURNISS, Individually and as Executrix, etc., of HARTMAN K. FURNISS, Deceased, Defendants. (Appeal No. 1.)
APPEAL by the defendants, Sophia R. C. Furniss and another, individually and as trustees, etc., and Clementina Furniss, from an order of the Supreme Court, made at the New York Special Term, pursuant to section 976 of the Code of Civil Procedure, and entered in the office of the clerk of the county of New York on the 8th day of June, 1911, overruling the said defendants' demurrers to the amended complaint and the supplemental complaint.
Henry de Forest Baldwin, for the appellants.
Herbert Barry, for the respondents.
The practice adopted in the case at bar of entering an order instead of a decision as authority for the judgment, and of appealing from the order instead of from the judgment, has not only received the sanction of this court, but the approval of the Court of Appeals as well. (National Park Bank v. Billings, 144 A.D. 536; affd., 203 N.Y. 556.)
This action is brought to compel the trustees of certain trusts under the will of William P. Furniss, deceased, to account, and to compel them to discover and disclose to the plaintiffs the corpus of the property which they and their cotrustee Vermilye, deceased, received under the will. The appellants who are trustees demur on the ground that the complaint fails to state facts sufficient to constitute a cause of action against them as trustees and the appellants individually demur on the same
ground. The plaintiffs do not claim any interest under the will; their sole claim is that they are next of kin and heirs at law of the testator, being the children of one of his sons and as such have an estate in reversion in the corpus of the property held in trust, and that as there has been no accounting since the year 1878, their interests require that the trust property be identified and a record made thereof by an accounting.
The testator died in 1871, leaving a wife and three sons and three daughters him surviving. The will provides for the division of the remainder of the estate into a number of equal shares sufficient to provide one share for the widow of the testator, and one for each of his surviving children. It is alleged that this division was made and that each of the shares was comprised 'of property of great value.' The testator created a trust with respect to each of said shares, but this action relates only to one, that of Clementina Furniss, one of the daughters of the testator, and the further provision of the will with respect thereto is as follows: 'The remaining share I give to my said executors in trust to collect the rents of real estate and to keep invested and collect the income of personal estate and to pay over the net income of both realty and personalty to my daughter Clementina during her life, and upon her death I give the same to such of her issue, if any, brothers and sisters as she may appoint by instrument executed as a will of real estate, and failing to make such appointment I give the same to her mother, but if her mother shall not survive her, then I give the same to her surviving sisters in equal shares.'
The widow of the testator and his three sons died prior to the commencement of the action, but the three daughters are still living. Clementina, who is the life beneficiary of the share of testator's estate in question, is over sixty years of age, and is not now and never has been married, and it is evident from these facts that she will die without issue. Her sisters are upwards of sixty-five years of age.
A similar trust with different trustees, in part, with respect to one of the shares was provided for the benefit of each of the other daughters of the testator, and, therefore, the next of kin and heirs at law of the testator, on the death of his last surviving daughter, will take the corpus of one of these shares;
and if all of the daughters should die now without issue, the plaintiffs, being the next of kin and heirs at law of the testator, would take the original share of the last surviving daughter. It is certain that those who are the next of kin and heirs at law of the testator at the time of the death of his last surviving daughter will come into possession of the share set apart in trust for her; but it is not alleged that Clementina's sisters have no issue, and if they have issue, and if one of them should be the final survivor, such surviving sister would be authorized to appoint by will that her issue should take her share, and, therefore, it cannot be said that plaintiffs have an estate in reversion in the share of Clementina, which is the one now before the court and concerning which they demand an accounting. There is but a possibility of a reversion with respect to that share, for she is authorized by a power of appointment to give the estate in remainder of her share to one or both of her sisters; and should she fail to exercise such power of appointment, then such estate in remainder goes under the will of the testator to her surviving sisters or sister, and it can only go to the next of kin and heirs at law of the testator in the event that both sisters predecease Clementina, and in that event it would only go to the plaintiffs in case they survive her sisters. Our attention is drawn to the fact that ...