Freeborn v. Wagner , 1867 N.Y. App. Div. LEXIS 87 ( 1867 )

By the Court, Gilbert, J.

It is against the rule of courts of equity, to compel a purchaser, on a bill for a specific performance, to take a doubtful title ; in other words, to buy a law suit. We have, therefore, looked into the title, which these plaintiffs tendered to the defendant, with scrutiny; and, upon full consideration, we are of the opinion that it is free from legal objection.

James Cutwater devised to each of the plaintiffs, one equal half part of his estate, subject to these restrictions, namely, that each of the devisees is vested with a power of testamentary disposition, unaffected by any trust or limitation ; but-in case of the death, intestate, and without issue, of either devisee, whatever may remain of the same property is devised to the survivor.

Both devisees have united in a conveyance to the defendant, with covenant of warranty. This, certainly, would pass all the title of the plaintiffs, either vested or contingent; for the plaintiffs are “ capable of holding lands,” and may alien any estate or interest therein of which they are seised, or to which they are entitled. (1 R. S. 719, § 10. Albany Ins. Co. v. Bay, 4 Comst. 19. Dickerman v. Abrahams, 21 Barb. 551.) And by the statute, (1 R. S. 725, § 35,) expectant estates are alienable, in the same manner as estates in possession.

The covenant of warranty would operate as an estoppel, against the plaintiffs asserting any title, in contravention of their conveyance.

Can the title thus conveyed be defeated by an execution of the power of testamentary disposition contained in the will ? This power is general and beneficial, because it authorizes the alienation by will, to any alienee whatever, and no person, other than the grantee, has, by the terms of its creation, any interest in its execution. (1 R. S. 732, §§ 77, 79.)

The will also vests an absolute power of disposition, in each devisee, because the limitation over embraces only such part of the property as shall remain undisposed of at the death of the devisee who shall first die. No formal set of words is necessary to create a power. It is sufficient if the intention to create it clearly appears, and instruments are construed liberally, in furtherance of that intention. (4 Kent’s Com. 319.)

Each devisee may, therefore, in her lifetime dispose of the entire fee of the estate devised to her, for her own benefit. The language of the will clearly manifests such intention of the devisor, even if the devisees are not, by means of the express power, enabled in their lifetime, to dispose of the entire fee .for their own benefit. (Id. § 85. Jackson v. Edwards, 7 Paige, 401.) By section 83, of the same statute, it is provided that when an absolute power of disposition, not accompanied by any trust, shall be given to any person, to whom no particular estate is limited, such person shall take a fee, subject to any future- estate that may be limited thereon, but absolute as to creditors or purchasers.” We think there is no limitation of any particular estate, to' either of these plaintiffs, contained in the will. It is only in case one of them shall die, intestate and without issue, that what shall remain of the estate given to her shall, for the benefit or behoof of the survivor, be deemed to have been held for life only. But, if a tenancy for life was created, then, by the express language of the statute, each devisee possesses an absolute power of disposition. (Id. § 84.)

The statutes cited have accomplished that which the legislature intended, namely, the making of the power of disposition equivalent to actual ownership. (Rev. Notes to art. 3, ch. 1, part 2.) The power having been granted by the will, did not take effect until the death of the donor. It is manifest, therefore, that the estate of the plaintiffs is no longer subject to the contingency that any future estate may be limited thereon. Any execution of the power of testamentary disposition, made after the conveyance to the defendant, could, therefore, have no manner of effect upon the estate thereby conveyed.

The defendant’s counsel contends that the estate devised to the plaintiffs is a determinable or qualified fee; and that the interest, which each devisee takes in the share of the other, in case of survivorship, is a naked possibility only.-. Conceding that this is a proper denomination of estates and interests in lands, under our statutes, still the whole estate of the "devisor was vested in the devisees, and will go to the defendant, by the conveyance of the plaintiffs. (1 R. S. 722, §§ 2, 7, 8, 9,13, 35. Lawrence v. Bayard, 7 Paige, 76.) In this case the chancellor says that by the term, “ expectant estates,” the legislature intended to-include every present right or interest, either vested or contingent, which may, by possibility, vest in possession at a future day. The mooted question, whether a mere possibility, coupled with an interest, is capable of being conveyed,, is, therefore, forever put at rest in this state...

[Kings General Term, February 11, 1867.

We have shown that the estate so conveyed cannot be defeated or divested by an execution of the power of testamentary disposition. Without going into any refinement of legal learning, therefore, we are of the opinion that, upon the plain language of the statute, the title offered to the defendant is good, and that he is, in equity, bound to accept it.

The court below directed judgment subject to the opinion of the court at general term. This was a mistrial; and the case must be sent back, unless the parties consent to a modification of the decision, by striking out the portion of it after the word “ costs,” and a further consent to the entry of judgment upon the decision as amended, and an appeal therefrom, nunc pro tunc; in which case judgment of affirmance, with costs, may be entered.

Lott, J. F. Barnard, and Gilbert, Justices.]