Herriot v. Prime ( 1895 )

CULLEN, J.

This is a submission of a controversy without action. The question presented is whether the plaintiff, as surviving executor and trustee under the will of Warren Herriot, can convey a good title to lands of which said Herriot died seised. We think the power of sale ceased for two reasons.

The power is given in the following terms:

“I do hereby give to my said executors and trustees [the plaintiff and the testator’s widow, Sarah] full and complete power to sell and dispose of my said real estate, at such time, in such manner, and on such terms as they shall jointly consider beneficial and for the interest of my said estate, with full power to convey by deed jointly, and not singly, as I might do if living,” etc.

This power determined upon the death of the widow, Sarah, for section 2642 of the Code (a re-enactment of the Revised Statutes) does «not prevent a testator from placing such limitations on the exercise of powers granted by him as he may deem fit, but merely prescribes a rule applicable in the absence of directions by the testator to the contrary. Hyatt v. Aguero (Super. N. Y.) 1 N. Y. Supp. 339; Kissam v. Dierkes, 49 N. Y. 602.

Secondly, we are of the opinion that the trust estate to which the power was annexed terminated on the death of the widow. The codicil upon which the decision of this question rests is drawn with a confusion of expression approximating to genius. The testator directs that, in case of the birth to him of a child, “his will shall remain in full force and virtue until the said child arrives at the age of twenty-one years.” If there were no period of time named, it might be thought that this direction was to prevent the effect of the birth of such child on his will, under section 49, p. 65, 2 Rev. St., though such a direction was unnecessary, as provision for the child was made by the codicil. But, when the direction is that the will shall continue in force till the child is 21, it is plain that the testator does not mean his will, but some provision of it. We are inclined to thiijk the testator may have referred to the trust created in the first clause of the will, but this is only conjecture on our part; and, to sustain the trust after the decease of the widow, we should have to go further, and incorporate a direction to apply the income to the child during its minority. This we cannot do, for the will is barren of any provision in that regard. Therefore, whatever our conjectures may be, we must hold that, under the terms of the will and codicil, the fee of the estate upon the death of the widow immediately vested in the child, subject to be divested by her death before the age of 21.

Judgment for defendant on submitted case, without costs. All concur.