Learned v. Tallmadge , 26 Barb. 443 ( 1856 )

By the Court, Harris, J.

The purpose of Nicoll, the testator, in reference to the premises in question, is easily discerned. He intended that his grandson, Sill, should have every benefit which could be derived from their use, during his life, and the unrestricted disposition of them, at his death. All the power withheld was that of alienation during his life. Hence, the care with which he provided that Sill and his family should have the rents and profits of the property in the various contingencies to which they were subject. He went further, and authorized the trustees to impair the value of the freehold itself, by cutting off the wood and timber, for the benefit of Sill.

The object of the testator was, to some extent, defeated by the deed of the 3d of March, 1840. He did not mean that any thing should be done which could have the effect to deprive the object of his bounty of the rents and profits of these premises while he lived. He protected him against his own inclination to part with the premises by confining his power to a devise, which, from its nature, could only take effect upon his death. Until then, the disposition he might at any time feel inclined to make of the property would remain revocable. And yet, by procuring the trustees to unite in the deed, he did succeed in defeating the purpose of the testator and depriving himself and his family of the use of the premises for the last eight or ten years of his life.

Upon the death of Nicoll, the title to the premises vested in the trustees during the life of John L. Sill, with remainder over to his issue living at the time of his death, subject nevertheless to the power of appointment contained in the will. As Sill left no issue living at the time of his death, the title to the premises, upon his failure to appoint, would have vested in the heirs at law of Nicoll. Having made an appointment in the manner authorized by the will creating the' power, there can be no doubt that upon the death of John L. Sill, the title to the premises became vested in his widow as appointee, unless by the deed of March 3, 1840, he had divested himself of the right to make such appointment.

Although, as we have seen, Sill was the person for whose benefit the property was intended, yet, in fact, he never had any beneficial interest in it. The title was vested in the trustees during his life for the use of his wife and children. liV was only in case he survived his wife and all his children that he was entitled to any thing at the hands of the trustees. It is true the trustees were authorized to cut down and sell wood and timber, and upon doing so they were required to pay over to Sill the proceeds. But it was discretionary with the trustees whether they would act upon this authority. It gave to Sill no beneficial interest in the land. He was, therefore, a stranger to the title, having no legal or equitable interest in it. The contingency upon which he would have become a cestui que trust never happened, for his wife survived him.

Such a power belongs to that class which has been denominated powers simply collateral. It is a peculiarity of this class of powers, that they can neither be barred nor extinguished by any act of the party in whom they are vested. If or would the case be different, if it were conceded that Sill j had an interest in the land as cestui que trust. .Tliepower / would .still be collateral...

A case quite analogous to this, in most of its features, is found in Reid v. Shergold, (10 Ves. jun. 370.) An uncle had devised to two trustees a certain estate in trust for the separate use of his niece, Mrs. Stables, for life, with power to her to dispose of the estate by will, and in default of the execution of the power, the estate was to pass under a residuary devise in the will. One of the trustees, only, accepted the trust, and he afterwards surrendered the estate to Mrs. Stables. Thus she became entitled to the legal estate subject to the trusts specified in the will. Having the legal estate, and the entire beneficial interest for life, with authority to appoint to whom the remainder should go, she made a will, which had it remained unrevoked, would have been a good execution of the power. Afterwards, in consideration of an annuity, she transferred the estate to a purchaser. It was held that the transfer, though invalid as a conveyance, amounted to a revocation of the will, and the power being in fact unexecuted, the estate passed to the residuary devisee. The lord chancellor, in deciding the case, said, “ The meaning of the testator was this: he was providing anxiously, in every part of his will, that his niece should have the power of receiving the rents and profits, from time to time, for her separate use, tying up her hands from indulging her inclination against herself. He studiously confines her power of giving the premises, to a power of giving by will, a power in its nature revocable, in every period of life—the power given in that way to protect her against her own act. She had nothing in point of interest, but for her life. In point of authority she might, by her will, have made a disposition to take effect after death. The testator intended that she should give by will or not at all, and it is impossible to hold that the execu'ion of an instrument or deed, which, if it availed to any purpose, must avail to the destruction of that power which the testator meant should remain capable of execution to the moment of her death, can be considered in equity an attempt in or toxvards the execution of the power. That therefore will not do.” (See also 1 Story’s Eq. Jur. §§ 97, 173 ; Chance on Powers, § 2877.)

The sale by the donee of the power, in Reid v. Shergold, after she had made her will executing the power, was regarded as a revocation of the will. The power was thus left unexecuted. There is no reason to believe that, if the donee had, subsequent to her conveyance of the estate, made another will in execution of the power, the appointment would have failed to take effect. Certainly there is no intimation to this effect in the report of the case.

If, in this case, the life estate which was vested in the trustees had been given directly to Sill himself, the deed of the 3d of March, 1840, would not have operated to extinguish the power. Such a power would be a power in gross, and might be extinguished by feoffment and livery of seisin. “ The feoffment,” says Kent, “operated upon the possession without any regard to the estate or interest of the feoffor. It had the transcendent efficacy of passing a fee by reason of the livery, and of working an actual disseisin of the freehold. It cleared away all defeasible titles, divested estates, destroyed contingent remainders, extinguished powers, and barred the feoffor from all future right, and possibility of right, to the land, and vested an estate of freehold in the feoffee.” (4 Kent’s Com. 481.) But this deed is a mere grant, and only operated upon the estate or interest which the grantors had in the land and might lawfully convey. It is what the common law writers technically called “ an innocent conveyance,” because it passed such interest as the party executing the grant had, and no more. A tenant for life, having a general power to dispose of the reversion by appointment, might execute a grant in fee and afterwards execute the power. But if he had conveyed by feoffment, with livery of seizin, the jjower would have been destroyed. “ An assignment of totum statum suum,” sajrs Sugden, in speaking of this class of powers, “ does not affect such power, because the power does not fall within the compass of his estate, but takes effect out of an interest not vested in him. And although the tenant for life assume to j)ass a fee, yet, if he convey by an innocent conveyance, as a bargain and sale, &c., the power will not be destroyed.” (Sugden on Powers, 2d Lond. ed. 61.) Again the same writer says, page 62, “the cases seem to establish this general principle, that every power in gross may well be exercised, although the donee may have previously parted, by an innocent conveyance, with the estate to which it was annexed.” (See Revisers’ note to the article of the Revised Statutes on powers; also, 13 Petersdorff Ab. 644, note.)

Nor can I see how the defendant’s case is improved by the covenant of Sill, that he could not and would not dispose of the premises by will. I am inclined to regard this covenant as personal rather than real. It concerned Bichard Sill, who, though, not so expressed in the deed, is to be deemed the covenant%&, personally, rather than as owner of the land. By virtue of the deed itself, he had acquired an estate in the land during the life of his father. He needed no such covenant as that contained in the deed to assure to him that title. The covenant was intended to operate upon the remainder which he had not yet acquired. If he and his brother should survive their father, and no will should be made in execution of the power of appointment, the remainder, by the terms of the will of Hicoll, would vest in them. Or, if he should survive both his father and brother, and no appointment be made, then the whole of the remainder would vest in him. He might be prevented from acquiring title to the remainder by the execution of the power. It was for his personal interest, therefore, that no appointment should be made, unless, indeed, it should be made in his favor.

But the defendant had no such interest. By virtue of the conveyances under which he claims, he had acquired an estate during the life of John L. Sill. The remainder must either pass to the heirs at law of Francis Hicoll, both the sons of John L. Sill being dead, and there being no devisee to take, or it must pass to a devisee to be appointed by John L. Sill. In which of these ways the title to the remainder should pass, was a question which did not concern the defendant. In neither event would it come to him. As the owner of a life estate in the land, therefore, the covenant of John L. Sill with his son that he would not exercise the power of appointment, did not affect the defendant. He was not, in any respect, injured by its breach. If the covenant had been to execute the power of appointment in favor of Bichard Sill, his heirs and assigns, very different questions might have been presented.

It is insisted on the part of the defense, that Mrs. Sill, having executed the deed of the 3d of March, 1840, is estopped from taking under the will of her husband. At the time she executed the deed, Mrs. Sill had the entire beneficial interest in the land during the joint lives of herself and her husband. The effect of the execution of the deed, by her, if indeed, it had any validity, was to release to the grantee all the interest she then had in the land. The deed contained no covenants for the future. Indeed, being a feme covert, she was incapable of doing more than to release her present interest. There was nothing which rendered her incompetent to take the remainder of the estate by appointment, if such appointment could legally be made, and that it could, we have already seen.

The act of the legislature passed in 1852, (Sess. Laws of 1852, ch. 322,) can have no effect upon the questions now under consideration. It had been declared by law, that where the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees, in contravention of the trust, shall be absolutely void; and, again, that no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest. (1 R. S. 730, §§ 63, 65.) In view of these provisions, the validity of the deed of March 3, 1840, might well be doubted. At the time the act of 1852 was passed, the interest which Richard Sill took under the deed of March 3, 1840, whatever it was, had become vested in the defendant in this action. His object in procuring the passage of the act is apparent. He desired, if possible, to supply the obvious defect in his title, arising from the want of power in the trustees and those beneficially interested in the trust, to convey. For this purpose the legislature were induced to declare that the conveyance of March 3,1840, should be as valid and effectual as if the trustees and parties of the second part had been previously and duly authorized to sell and convey. The object of the act, undoubtedly, was to prevent, if legislation could do it, the. deed to Richard Sill from being declared void under the provisions of the revised statutes, to which I have referred. Whether it could have even that effect is a question which I need not now determine. It is certain, that it could not have the effect to vest in the grantee any greater title or interest in the land than the grantors then had.

One other question remains to he considered—the question of adverse possession. The defendant insists that the conveyances under which the plaintiff claims title are void, because at the time they were delivered he, the defendant, was in actual possession of the premises, claiming under a title adverse to that of the grantors in these conveyances. (1 R. S. 739, § 147.) I do not think this position can be sustained. The defendant entered under a title which, at the most, gave him an estate in the land during the life of John L. Sill. Upon the death of the latter the defendant’s term expired, and he then became a tenant by sufferance. This tenancy did not expire until one month after notice to quit had been served by the owner of the reversion. At the time of the conveyances from Mrs. Sill to Hoyes, and from Hoyes to the plaintiff, therefore, though in- actual possession of the premises claiming title, the defendant did not claim under a title adverse to the title of the grantors in these conveyances. The claim of the defendant was adverse to that of Mrs. Sill and those deriving title from her. It was so, because the defendant misapprehended the effect of the conveyance under which he claimed to hold the premises. The title under which the defendant claimed was not, in fact, adverse to the plaintiff’s title. The defendant had entered under a conveyance of an estate for the life of another. His estate ceased with that life. He then, being lawfully in possession, became the tenant by sufferance of the person entitled to the reversion, who turns out to be Mrs. Sill. When the conveyances in question were made, therefore, the defendant, whatever may have been his claim, was, in fact, the tenant, first of Mrs» Sill and then of her grantee. The title under which he claimed was not adverse to the title under which the plaintiff now claims. The conveyances, therefore, cannot be avoided upon this ground.

I have thus examined all the grounds of defense which were presented upon the trial of this action. I have bestowed upon the case a much greater amount of attention than is usually devoted to a trial at the circuit, for the reason that the questions involved are important, and some of them, to me at least, novel, and having been fully and well argued on both sides, it was the mutual request of the parties, at the trial, that the decision should be made upon a full examination of these questions. That examination 'has led me to the conclusion that the plaintiff is entitled to judgment.

[Albany Special Term, October 6, 1856.

Harris, Justice.]