Opinion
11-18-1885
GULICK v. GULICK and others.
John F. Hageman, for petitioner. W. J. Gibby, G. O. Vanderbilt, and John H. Stewart, contra.
John F. Hageman, for petitioner.
W. J. Gibby, G. O. Vanderbilt, and John H. Stewart, contra.
BIRD, V. C. These parties, having between them all the title to a tract of land, mortgaged it. They afterwards entered into covenants by which it should be enjoyed by them for life, and the fee pass to their heirs at law. Still later, a serious controversy arose between them, in which the wife succeeded in obtaining a decree, but was unable to realize the full benefit of it because of the poverty of her husband. While this litigation was in progress, the holder of the mortgage foreclosed, and upon a sale realized the amount due upon his mortgage, and a surplus of $218.01 was paid into this court. Mr. Scudder obtained a judgment against them for $102.82. This was decreed to be due to him in saidcause, but it has not yet been paid to him. Mrs. G. claims that this surplus money "really and equitably belongs to her, as trustee for her own use, if not in her absolute individual right, as the farm itself was held by her under the deed and declaration of trust, and the exceeding small amount of the surplus remaining will be more properly applied by giving it to her to clothe and feed her in her destitution, or to enable her to pay her costs and expenses of suit, than to cause the same to be invested permanently under the said declaration of trust."
I am unable to see how the court can agree with this insistment. How can the court change the covenants and declarations of the parties? How can the court take these crumbs, though trifling, from the children, who may now be or will soon find themselves in distress, and apply them to the feeding and clothing of others, however great the want? It is a question of power. I cannot think that the court has any such power. If the power exists because the fund is small, it exists in every case. If the court can direct $218, it can $2,000 or $2,000,000. It is a matter of principle, and if the right or power claimed exists at all, it is without limitation. This trust was created in a most solemn manner; and it has been established by the decree of this court; and I cannot discover that the court can now by its order destroy it.
As to the claims of Mr. Scudder under his judgment. That judgment was not against the cestuis que trust, although obtained since the declaration of trust; nor were they parties to the proceedings in any way. They have not been heard. This makes it plain that his judgment cannot be paid out of this fund at present. The application to open the decree, however, and to allow that question to be considered cannot prevail, because it is not made in the interests of the cestuis que trust. The court will hear the cestuis que trust if they come in, or will hear the judgment creditor if he brings them in, and gives them a chance to speak in their own behalf.
I think the petition should be dismissed, but without costs.