author: Gray, J.

text:
    John Townshend, App’lt, v. Edward Frommer et al., Resp’ts.

      (Court of Appeals,

      Filed February 24, 1891.)

    'Trust—Ejectment—Title necessary to support action.
    Clarissa E. Curtis, being the owner in fee of certain real estate subject to a mortgage which she assumed in May, 1837, conveyed the same to Eliza Racey, as trustee, her heirs and assigns, in trust nevertheless to receive the yearly income during the life of said Clarissa, free from all claim and control or debts of her husband, and “ on the further trust that the said party of the second part and her heirs shall, at the decease of the said Clarissa, convey the said lands, and every part of them, in fee simple to the children of the said Clarissa, living at her decease, and the surviving children of such of them as may then be dead, in equal portions per stirpes, and not per capita.” The said mortgage having been assigned to George Lovett, he began foreclosure proceedings in September, 1837, joining Mr. and Mrs. Curtis and Eliza Racey, but not including the living children of Mrs. Curtis, and bought in the property upon the foreclosure sale, and it passed by mesne conveyances to defendants, who are in possession. Plaintiff claims through deeds, lrom children and grandchildren of Mrs. Curtis, of four undivided tenths of the land. Held, that at the time of the foreclosure proceedings, the then living children of Mrs. Curtis did not have any estate in the lands i:i question, and their equitable interests were all in abeyance; that the whole estate was transferred to the trustee, and every interest not embraced in the trust remained in the grantor, and that until her death no estate could vest in any others, and as meanwhile she and hqr trustee had been divested of the estate, none remained to which future interests might attach.
    (Andrews, J., dissents.)
    Appeal from judgment of the New York superior court, general term, overruling plaintiff’s exceptions, and ordering judgment to be entered on the verdict, with costs.

      George F. Danforih, for app’lt; John F. Dillon, for resp’ts.

       Affirming 25 N. Y. State Rep., 358.

   Gray, J.

This is 'an action of ejectment and through it the plaintiff seeks to establish his right to the possession of certain real estate in a block of land in New York city, which is bounded by the Fourth and Fifth avenues and Seventy-sixth and Seventy-■seventh streets. The question of his right turns upon the sufficiency of certain proceedings for the foreclosure of a mortgage to bar his grantors of any right in the premises. The defendants claim title through conveyances upon a sale pursuant to the decree in said foreclosure proceedings; while the plaintiff claims that his grantors had a vested interest in the premises covered by the mortgage, which was never cut off by the mortgagee’s proceedings and remained theirs to dispose of. The material facts can be briefly stated. In 1835 William Wagstaff, being the owner of land, of which that now in question formed a part, conveyed to Dimond and received back a purchase-money mortgage for §10,000. Dimond then conveyed to Curtis, and on September 28, 1835, Curtis conveyed the land to Stillwell, who on the same day reconveyed it to Clarissa E. Curtis, wife of his grantor. All these conveyances were made subject to the above mortgage, and its payment was assumed by the several grantees. May 1,1837, Mrs. Curtis, her husband uniting with her, conveyed property, which included the premises, to Eliza Eacey, upon certain trusts which I give from the record.

But in trust, nevertheless, that the said party of the second part and her heirs shall receive the yearly income, rents, profits and produce of the said lands and premises and apply the same yearly during the natural life of the said Clarissa to the use of the said Clarissa, free, clear, exempt and discharged from all claim, demand, right, control or influence of her husband, the said James L. Curtis, or any husband that she may at any time have, and not to be in anywise subject to his debts, or any lien or charge created by him or anyone claiming by, from or under him, but to the sole and separate use of the said Clarissa.
And on the further trust that the said party of the second part and her heirs shall, at the decease of the said Clarissa, convey the said lands and every part of them in fee simple to the children of the said Clarissa, living at her decease, and the surviving children .of such of them as may then be dead, in equal portions, per stirpes, and not per capita, that is to say, etc.” * * *

Meanwhile, the mortgage affecting the premises had become the property of George Lovett, who, in September, 1837, commenced foreclosure proceedings. He joined Mr. and Mrs. Curtis, the grantors, and Eliza Eacey, the trustee named in the trust conveyance, as parties defendant; but he did not join as such certain children of Mrs. Curtis then living. In 1840 a decree of foreclosure and sale was had. The plaintiff in foreclosure purchased a part of the premises at the sale, and, subsequently, acquired the remainder from another purchaser. By mesne conveyances- the interest of Lovett in the land in question became vested in a Mrs. St. John in 1858, and she, and those claiming through her, have had an uninterrupted use and an actual possession since that year.

In November, 1885, the plaintiff purchased and took bargain and sale deeds, without covenants, from children and grandchildren of Mrs. Curtis, of four undivided tenth parts of the land. In the subsequent year Mrs. Curtis died, and then the plaintiff commenced his action.

It is quite evident that whether the proceedings leading to foreclosure and to a sale of the mortgaged property were efficacious to confer a clear title upon the purchaser, as against plaintiff’s grantors, is a question to be determined by the legal construction and effect which should be given to Mrs. Curtis’ trust deed to Mrs. Eacey. If the effect of that deed was to vest a legal estate in remainder, from the time of its delivery, in the children of Mrs. Curtis, then they were necessary parties to the foreclosure proceedings, in order to cut off their rights and the equity of redemption. And this is what the appellant claims to have been the legal effect of that instrument But if the effect of the trust deed was to vest the whole of the legal and equitable estate in the trustee, subject to the execution of the trust in favor of the grantor, and the reversion remained in the grantor and her heirs until after the termination of the trust estate and subject only to the execution of the power in trust, then all other interests were suspended meanwhile, and were, of necessity, contingent; and Mrs. Curtis’ children, living at the time, acquired no estate in the lands requiring them to be joined as defendants, in order to bar their rights and the rights of others in the class. And this is, substantially, the main position taken by the defendants.

When the property was conveyed to Mrs. Curtis, through Still-well, she became its absolute owner in fee, but subject to the lien of the mortgage referred to. Her power of disposition over it was absolute, and in its conveyance by the deed to Mrs. Eacey she exercised that power of disposition in the creation of two trusts. The first trust was to receive the rents and profits of the lands and to apply the same to her (the grantor’s) use during her life, and it was valid as an express trust, under the Revised Statutes. 1 R. S., 728, § 55, subd. 3. Under that conveyance the grantee, as trustee, was vested with the whole legal and equitable estate, subject only to the execution of the trust imposed, and every estate and interest, not embraced in the trust and not otherwise disposed of, by force of the statute remained in and reverted to the grantor or creator of the trust and her heirs, as a legal estate. IE. S., 729, §§ 60, 62. By the sixty-first section of the statute it is declared that the effect of the sixtieth section, which vests the whole legal and equitable estate in the trustee, shall not be to prevent the creator of a trust from declaring to whom the lands, to which the trust relates, shall belong upon the termination of the trust. This provision, so obviously negative in its character, was, undoubtedly, intended to prevent a construction of the previous or .sixtieth section, by which the grantor might be deemed incapacitated from making a disposition of the lands affected by the trust, upon its termination. The section created no new power of disposition, but recognized the existence of a right which had not been affected by the declaration of the quality of the estate which the trustee of a valid express trust would take. Therefore, Mrs. ■Curtis, after creating a valid express trust for her life, in proceeding, in the deed, to direct a further disposition of her lands upon the termination of the trust by her own decease, was exercising the legal right which inhered and remained in her to dispose in a ■certain way of the legal estate then remaining. Section 62. Had .she gone no further than to create the trust for her life, then, un■questionably, the reversion as a legal estate would have remained in her and her heirs. This is clear from the statute. But where the difficulty of this case is deemed to arise is in what the creator of the trust directed to. be done as to this legal estate, which was hers to dispose of, after the termination of the trust. IDid she invest other persons with any right to it; or did she ■continue to retain and to represent every interest, in herself or her heirs, which her trustee did not have? She directed the -grantee to hold the lands “ on the further trust,” after her -decease, to convey them in fee simple to her children “ living -at her decease and the surviving children of such of them as may then be dead.” This was not one of the express trusts permitted by the fifty-fifth section of the statute of uses and trusts. 'That it was an express trust, which, for not being comprehended -within those authorized by the statute, might be recognized as a power in trust, under its fifty-eighth section, the appellant questions. He insists that it was only a formal trust, which, by force of the statute, would be converted at once into a legal estate in remainder in its intended beneficiaries, to wit, in the children of Mrs. Curtis. He says that the trust was of a passive character; because conferring no control over the property, and that it was executed by the statute. 1 R. S., 728, §§ 47-49.

Prior to the Revised Statutes, and at common law, a trust to convey was certainly recognized as a special, or active, trust. Mr. Perry, in his work on Trusts, vol. 1, § 305, speaking of instances at common law of how the legal estate may be prevented from vesting in the cestui que trust by the operation of the statute of 27 Henry VIII, mentions those where there may “ any agency, duty or power be imposed on the trustee, as by a limitation * * * to pay the rents or to convey the estate,” etc. And see Lewin on Trust, 210, and the English cases cited in note. With the enactment of the article in our Revised Statutes upon uses and trusts, all such were abolished, except those which that article specified and authorized; but, by the fifty-eighth section of the article, it was provided that “ where an express trust shall be created for. any purpose not enumerated * * * no estate shall vest in the trustee; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust,” etc. A power, under the statute, is where authority is given to do some act in relation to lands or the ceration of estates therein which the owner might lawfully perform ; and where a disposition is limited to be made to any person, or class of persons, other than the grantee of the power, it is denominated as a special power in trust. Sections 74, 95.

Our statute of uses had been modeled after the English statute,-27 Henry VIII, ch. 10, and its purpose was to simplify and strengthen titles in lands, by abolishing distinctions between the mere title and the use, and in converting the beneficiary’s interest into a legal estate. Under that system, however, trusts could be created and the legal estate still be separated from the use, whenever the duties of the trustee were active; that is when they called upon him for the performance of some act about the estate. The revision, in 1830, of the statute was intended still further to prevent complications which arose in the separation of the legal and equitable estates through construing and enforcing a use as a trust; and, to that end, abolished, all except the active express trusts enumerated; permitting all other express trusts to be executed as powers in trust. See Revisers’ notes to §§ 45 and 55; Lang v. Ropke, 5 Sandf., 363; Downing v. Marshall, 23 N. Y., 366.

Obviously, a limitation upon the validation as a trust power of a trust not comprehended within those authorized is imposed in the respect that it must be one of those trusts which, at common law, would be deemed special or active trusts, as distinguished from nominal or passive trusts. The operation of §§ 47 and 49, and 50 and 58, of our statute of uses and trusts, read in connection, must be to prevent trusts from having any effect when only passive, and not directing or authorizing the performance of some act about the lands. An express trust, as a term descriptive either of the mode of its creation or of the legal title, could be created formerly whenever a special power, or duty, relating to the disposition of lands was imposed, and our Revised Statutes, while abolishing all express trusts, except those particularly enumerated, still permitted effect to be given to the intentions of a grantor, by declaring that when, others were attempted they should be effectuated through the medium of a power in trust.

The object sought in the revision of the statute, as the revisers have stated in their notes, was to limit the creation of express trusts to those cases where the purposes of the trust seemed to require that the legal estate should pass to the trustee, and to give legal effect to a purpose, where such a necessity did not exist, by permitting its execution as a power in trust, if contemplating the performance of some act. And see Judge Comstock’s opinion in Downing v. Marshall, supra.

When the appellant’s counsel insists upon the objection that a trust to convey is but a formal or passive trust, which cannot be validated as a power in trust, he reasons that the conveyance by the trustee is unnecessary for the vesting of the estate. If, in order to decide whether a trust, not authorized by the statute, shall be classified among those express trusts which may be effectuated as powers in trust, we are to determine its substance or activity by the obligatory nature of the duty to be performed, then the difficulty might, indeed, be deemed a serious one. If an express trust is not active unless it imposes a duty, which not only may, but must, be performed to affect, or effect, an estate, then the trust to convey here might be fairly said not to rank as a power in trust. But I think -that would be fallacious reasoning; inasmuch as the test of activity is not in the importance, or in the obligatory nature of the duty to be performed by the trustee, but consists in what the trust empowers and demands of him. If it is something which the grantor could do, and, in order to carry out, would require action on his part, then the trust created is an active trust; notwithstanding that, by reason of the statute, the act or duty may be one which, when directed to be performed by a trustee, the statute might execute when the time for performance arrived. It is not that the statute declares that a conveyance by a trustee is unnecessary; it is that by construction of the statute a conveyance is deemed to be unnecessary. It is the power to do something about the lands; that is, to dispose of them by a conveyance, that qualifies the trust as active.

A trust to convey naturally involves a power of disposition, and such a duty is -active, as compared with a trust which is passive, as in the cases cited in illustration in the books, where lands are granted or devised to A. to the use of B., or in trust to permit B. to take the possession and receive the rents and profits. In such a case at common law and under the Revised Statutes (§ 47, Uses and Trusts), the trust would be avoided, and the intent practically executed by giving to the beneficiary the legal estate, commensurate in quality and duration with the beneficial interest designed. Lang v. Ropke, 5 Sandf (Supr. Ct.), 363, 375. In the case cited, Judge Duer sustained, as a power in trust, a testamentary direction to sell and convey, for purposes of division of the estate, upon the youngest child attaining the age of twenty-one years. In his opinion, he says that where a trust is real and active, as where the trustee is empowered to convey the lands upon certain conditions to certain persons, the statute declares the trust valid as a power in trust.

Trusts to appraise and divide shares, or to sell, or to convey, have been held valid as powers in trust, under the fifty-eighth section of the Statute of "Uses and Trusts, in the following cases of Gilman v. Reddington, 24 N. Y., 9-15; Crittenden v. Fairchild, 41 id., 289-291; Manice v. Manice, 43 id., 303-364, and Clark v. Crego, 47 Barb., 599; aff’d, 51 N. Y., 646; the latter of which may be deemed to be very much in point.

I think we are quite warranted in holding that the further trust in this deed to convey after the grantor’s death was valid as a power in trust, and the question then is, what effect, if any, did its creation have upon the estate of the grantor. Did it confer any interest in the estate during the continuance of the grantor’s life upon any members of the class of intended beneficiaries ?

In Bowen v. Chase, 94 U. S., 812, cited for the appellant, the language of the opinion, to the effect that a direction to convey does not derogate from the vesting quality of equitable interests, has reference to the deed of appointment, executed under the power reserved to the grantor in her deed of trust. Madam Jumel had deeded her estate to a trustee, upon the trust to pay over the rents to herself for her life, and upon the further trust to convey upon her death to her heirs, with a reserved power to appoint the persons to whom the trustees should convey. By deed of appointment, subsequently made, she did direct her trustee, in the event of her failure to designate other persons by her will, to convey to her husband, Stephen Jumel, for his life, and after his death, or if he failed to survive her, upon her death, to Mary Jumel Bownes. The persons who were to take were designated, and Justice Bradley thought the legal effect of her appointment was to vest the interests in the appointees; though a conveyance would be necessary to confer the legal estate, as he further said. But Bowen v. Chase is not an authority which I deem controlling upon the question before us now. The material questions considered by Justice Bradley concerned the character of the trusts created by Madam Jumel, in their relation to herself as beneficiary, and the effect of the conveyances made by the trustee, in obedience to her direction and appointment, subsequent to her husband’s death.

Upon the question of the vesting quality of an estate, which is limited to take effect at a future day, upon the termination of a prior trust estate, in persons then to be ascertained, cases where the trust was to convey to definite persons named might be as unsatisfactory as authorities, as where the grantor or testator had given the remainder directly. It is the uncertainty here as to the precise persons in whom would exist the right to enforce the execution of the power in trust, if, upon Mrs. Curtis’ death, any estate remained to be conveyed, that introduces the element of contingency. The distinguished counsel for the appellant refers to many cases, in support of his proposition that the plaintiffs’ grantors, who were of the class entitled to the benefits of the power in trust, took vested remainders in the lands deeded by Mrs. Curtis ; some of whieh involved questions arising prior to our Bevised Statutes.

The revision made radical changes in the law of uses and trusts as it had existed, and it was intended that the law in that respect should have a new point of departure. It would be much easier to state reasons for our conclusion, if we had only the statutory provisions to be guided by. It is undoubtedly settled, by authority of adjudged cases, that a conveyance by the grantee of the power in trust is not essential upon the termination of the trust estate, and that the statute operates then to annex the use and to vest the legal estate, without waiting for the trustee’s conveyance. That principle, in a manner, by the force of judicial opinion, has been engrafted upon the statute provisions. In view of the many phases of uses and trusts presented to the courts, it is not remarkable that we should find observations in the opinions of judges not easily reconcilable with the conclusion in a particular case. But I am not aware that any case presenting the precise question here can be found, though some may have a likeness in particular features.

In Watkins v. Reynolds, (decided by us in October term, 1890,) 33 N. Y. State Rep., 173, the question was not discussed as to powers in trust. Testator, there, left property upon an express trust for his daughter’s life, and, upon her death, upon trust to convey to her heirs then living. There was no point made nor discussion had by courts or counsel as to powers in trust. It was simply held that when the trust terminated by the daughter’s death the trust estate vested at once in a son and daughter surviving her, and a formal conveyance was unnecessary by the trustee. The point of the opinion, in that respect, was in holding that upon the daughter’s death the title had vested in her heirs.

In Genet v. Hunt, 113 N. Y., 158; 22 N. Y. State Rep., 774, the action was for the construction of a will made by Mrs. Biggs. Prior to and in anticipation of marriage she had executed a deed to trustees, upon the trust to apply the rents and profits to her use during life. If she died during coverture the trustees were to convey as s"he by her will might direct, and, in default of such direction, to her heirs-at-law. Mrs. Biggs died, leaving a husband and children surviving, and by a will had undertaken to dispose of her estate. The question presented and passed upon was, whether the trusts created by the will were valid within the law of perpetuities or were void for remoteness. It was held that the will was an execution of the power of appointment reserved in the trust deed, and, therefore, spoke from the time of the execution of that grant. The result of that construction was to invalidate the trusts in the will, as offending against the statute, because extending beyond the permitted period for the suspension of the absolute ownership of property. With respect to Mrs. Biggs’ position under the trust deed, it was held that she was no longer the absolute owner of the property, and that the only right of disposition she had over it was the power to appoint by will and the power of disposition not being absolute, because restricted to a disposition by will, was not equivalent to absolute ownership. The argument and opinion ranged over the point, in reality, as to whether Mrs. Riggs did not remain invested with such absolute ownership of the property covered by the trust deed as to enable her to dispose of the reversion to it as from the time of her death. It was decided she was not such an owner and had put it out of her power to dispose of it, otherwise than by a will in execution of the power in the trust deed.

The expressions in the opinion, which are seized hold of by the appellants as characterizing the interests of the persons entitled to take pursuant to the direction of the trust deed, must be read in connection with the text of the opinion, and as indicating merely the inalienable character of the trust property, except in the modes pointed out by the trust deed. But nothing in the opinion need be deemed as deciding that the persons who might be entitled upon Mrs. Riggs’ death to receive the trust property by virtue of the trust deed took any vested legal estate in remainder upon its execution. The same learned judge who delivered the opinion in Genet v. Hunt, at the same term of court, in the case of Goebel v. Wolf 118 N. Y., 405; 23 N. Y. State Rep., 176, adverts to the rule upon the subject of the vesting or non-vesting of estates in language useful to the present contention. In the latter case the question was whether upon the testator’s death his children took immediate vested estates under a further trust created in his will for the trustee to divide the estate equally among his children, upon the arrival of his youngest child at the age of twenty-one years. It was contended that the gift was to the children as a class, and for only such of them as should be living upon the termination of the trust. Judge Andrews said, in discussing that point (p. 412), “where the only gift is found in a direction to divide at a future time, the gift is future, and not immediate; contingent and not vested.’’ And then, talcing up the facts of the case, he further said, “ there is nothing on the face of the will to indicate that the testator contemplated the death of any of his children during minority. * * * The gift of the ultimate estate is not, in terms, to his children living at the time of the division, or to the survivors of his children, but the division is directed to be made among my children share and share alike.’” It was held, therefore, that the intention of the testator, as collected from the will, was merely “to define the period of enjoyment * * * rather than the period of the vesting of the shares.” His reasoning upon the question of vesting would militate here against the vesting of any estate in Mrs. Curtis’ children prior to her death; for the trust was to convey to the children living at the time of that event and the surviving children of such as_ may then be dead ; terms which, in Judge Andrews’ opinion in Goebel v. Wolf were deemed to indicate futurity and contingency in the gift.

Miller v. Wright, 109 N. Y., 194; 14 N. Y. State Rep., 811, decided that upon the death of the life tenant the trust terminated .and the real estate vested in his children. This was a suit for the partition of real property and the question was as to the effect upon the title and proceedings of the vesting of the interests of the children by reason of the. life tenant dying pending the partition proceedings. Judge Earl merely decided that the children should have been made parties upon the death of the life tenant before judgment.

. Stevenson v. Lesley, 70 N. Y., 512, was an action for the construction of a will, which gave the residuary estate in trust for testator’s grandchildren, share and share alike, to be paid and conveyed to each child as it became of age, and meanwhile to be applied in their support. After testator’s death another grandchild was born, and the contention was over its right to a share. It was held that, being born after testator’s death and before the time for distribution of the estate, the child was entitled to a share. Woodgate v. Fleet, 64 N. Y., 566, was an action to determine the rights of various parties, claiming through the grantor in a conveyance of lands upon trust. Under the trust deed the trust term had ceased, and the question arose and was litigated whether any and what estate had then vested, and that turned upon the point of the validity of a trust for after-born children, with respect to a •suspension of the power of alienation. Bruner v. Meigs, 64 N. Y., 506, was an action for the cancellation of a contract for the sale •of land, and the decision was that the title proffered was defective, for want of power in the trustees to convey. Their power of sale having terminated with the cessation of the trust estate, they ■could no longer contract to sell. It was held that the trust to convey upon the death of the life tenant did not constitute a trust ■or require the estate to be vested in the trustees; but, as Judge Allen said, “ it was merely a power in trust and could be executed as such.” It was considered that the vesting of the estate, however, would not be defeated by the neglect to convey, as it did not depend upon the execution of the power. The case is not in point, either with respect to the nature of the action or with respect to what was decided. The life tenant had died and the contention was over the question of whether the trust to convey left a title in the trustees which they could transfer under the power to sell. Adams v. Perry, 43 N. Y., 487, was an action for the construction of a will, and the validity of a testamentary •devise for the benefit of the president, etc., of the Lowville Academy was in question. The executors were directed to convey the land to the trustees of the academy upon certain trusts, and it was held that the executors took no trust estate in the land, but that it vested in the corporation subject to the trusts imposed. Re Livingston, 34 N. Y., 555, was a proceeding for the removal of a trustee of an express trust, instituted by persons entitled to take upon the death of the beneficiary. It was held, on the question of interest, that a conveyance would be unnecessary by the trustee to effect title, as the transfer would be made hy operation of the statute when the trustee’s office terminated.

Gilman v. Reddington, 24 N. Y., 9, was an action for the construction of a will. The trust there was for the benefit of testator’s three infant children, until the two youngest attained the age of thirty years or died under that age. The youngest died after the testator and at the age of two years. The question was as to the limitation of the trust during the two lives, and it was held valid. It was held that the children took vested remainders at testator’s death. But the trust was for specified children. The testator had created an estate for them, which he intended they should be supported from up to a certain age, and then they were to have it absolutely. The estate was theirs beneficially from the instant of its creation, and the enjoyment only postponed. An expression of Judge Comstock’s in the opinion might be profitably referred to. He said that “trusts to convey.lands to a beneficiary are not enumerated in the statute of uses and trusts, but they are valid as powers in trust where the purpose of the-power is lawful.”

I have carefully considered these cases cited for the appellant and many other authorities in the books, and I have not found any so in point as to be controlling here. The question of trusts and powers with which we are dealing is one hedged in with difficulties and fraught with the risk of leading courts in apparent opposition to previous decisions. In its discussion the ingenuity of the legal mind has been exerted in the direction of subtle distinctions, and has been influenced by abstract propositions and led by authors who wrote in an atmosphere charged with technicalities and abstruse learning. If, in applying the doctrine of trusts to a given case, we are able to adhere to fundamental principles, the more exact should be the solution; and unless prior adjudications comprehend a decision of the precise question presented, they are not necessarily controlling upon the case at bar. There is a distinction between the present case and the cases in the books where the testator’s devise, or the grant, is to a trustee for the life of another, and, upon the death of the life tenant, then to others who are named, or who belong to-a class. In such cases we may be bound by authority to hold that the remainder vests, when the instrument goes into effect, in the remaindermen named, or in those of the class who may be then living, subject, of course, to be opened to let in after-born members. But, in this case, there is no grant to those who may subsequently receive the estate, and they will take only through the execution of a power in trust; or by the statute being set in operation to execute the- use, by reason of the death of the life tenant, and the consequent termination of the trust estate. How can we predicate a vesting meanwhile, whether we consider the character of the grant or whether we'consider the intention of thegrantoi’.

The intention of a grantor, whether express or implied, cannot control or interfere with the operation of a rule of law; but I think, when clearly evidenced, it can be made helpful, and may, in such a case as this, aid in the application of the established rules. We are commanded by the statute to give effect to intention in our construction of an instrument, so far as it is possible. 2 B. S., 748,

§ 2. From the language of the trust clause, it is evident that the grantor, Mrs. Curtis, desired, in the first place, to assure to herself, by placing the estate in another’s hands as trustee, beyond the risks attendant upon her husband’s acts or business, and beyond his influence and control, a life income from the estate; and, in the next place, after her life had ended, if any of her children should then be living, or any survivors of deceased children, that they should have it divided among them. She could have effected this latter purpose by a direct gift, or grant in remainder, contained in the instrument, or she could do it, as it was done, by adding another trust to that already created, namely, by empowering her trustee to convey the lands after her decease, in the due proportions, to her children. There does, not seem to be any confusion in the thought that she as deliberately purposed, as she as ■deliberately expressed herself in language, that during her life the whole estate should be in the trustee, for her sole use and benefit, and that all other interests should be in abeyance until the happening of her death, by which the trust estate would terminate, as the event upon which limited, and when her trustee might dispose of it by conveying it to the then ascertained members of a class named. Has she not intended, in so alienating her estate, while securing to herself a life income, as well, to assure herself that after her death, ■and not until then, those of her children who survived her, or the descendants of any pre-deceased children, should be benefited by it, and derive enjoyment or support from it possession ? What rule of law prevents our effectuating an intention which is so cogent and coercive, and compels us to hold that from the delivery of the grant to the trustee the children of the grantor were vested with a legal estate in remainder ? Why shall we not say that here the grantor intended to, and did create a trust to convey the estate to certain persons, who were only to be determined upon the happening of the event of her death; a disposition executory, and not executed in its nature, in the ordinary use of these terms, and enforceable as a power in the trustee; however unnecessary to- the vesting of the estate, at the time when the power might he exercised by the trustee, the actual ■exercise of the power would be? Because the statute would operate to execute the use in the intended beneficiaries of the power does not answer the question. Though the statute will execute the use, when the trustee might, or should, execute the power, the .statute does not operate before that time. If the trustee cannot, by the terms of his trust, exercise his power until the happening of the event which liberates it, the statute is not previously moved. It cannot operate upon the subject of the power before the power by its terms is itself operative. How, this is just the difficulty which such a power in trust raises in the way of the vesting of a future estate. It is executory, in the sense of calling for the performance of an act in the future which the donor might have performed, but which he directs to be done after his death by the trustee, in a certain mode to be determined at the time of ■performance by the facts then ascertained. It is necessarily inoperative till the happening of the future event. A future estate is described by the statute to be one commencing at a future day, and though it is capable of being vested, that vesting-is determined under the law by the question of whether there is a person in being who would have an “ immediate right to the possession.” That “immediate right,” I take it, exists by force of some gift in remainder made directly by the grantor or testator, and it would not be, strictly speaking, an “immediate right” if the estate could only come in the future by operation of the statute, or by a conveyance under the power. Where the future estate is one which is to be given through a power in trust to persons not ascertainable until after the happening of a certain event, how can there be vesting meanwhile ? In cases where a trust is. created which is not authorized by the fifty-fifth section of the statute, but is validated as a power in trust by the fifty-eighth section, no estate passes at all, and the title remains in the grantor, or descends to the persons otherwise entitled, as the case may be the grantee being merely the trustee of a power. 2 R. S., 729, §§ 58, 59; Dry Dock Co. v. Stillman, 30 N. Y., 174; Downing v. Marshall, supra.

The rule in equity as to the joinder of parties in a foreclosure action affects those who have vested estates in remainder or reversion, and does not concern itself with those who have future contingent interests merely. Story’s Eq. Pldgs., § 144. I cannot see how Mrs. Curtis’ children acquired any vested interest in the equity of redemption; for lack of any immediate right to the possession of the lands through a grant of them. What interests were not in Mrs. Curtis’ trustee remained in her, while she lived,, and, conjointly, they represented all estates in the lands. She had not granted them to any person other than her trustee ; but. had merely authorized them to be conveyed at some future day and to persons then to be ascertained.

In Bennett v. Garlock, 79 N. Y., 302, the question concerned the nature and tenure of the plaintiff’s interest in a trust estate, which her parents had created by deed to trustees upon trusts tosed for the payment of debts; to apply- net profits for the support of the grantors during their lives and the life of the survivor of them, and to hold the residue for such persons as shall be the right heirs of the grantors at the time of the death of the survivor of them. It was held that she took merely an equitable interest in the estate and that “ if the estate of the trustees is defeated in any way * * * the remainder must be defeated and the plaintiff’s right barred because it rests upon the same title.” It. was pertinently remarked in the opinion, with respect to the plaintiff’s right to the possession of the land in the trustee’s hands upon her mother’s death: “ Whatever way it was conveyed to her, by the trustees themselves or by force of the statute, she took subject to the acts of the trustees. * * * If by their neglect or consent an estate had been acquired by the defendant, or he had obtained an advantage which prevented the trustees from asserting their title, the plaintiff standing in their place is equally estopped and prevented.” I cite the case not as oné necessarily decisive of the question before us, but as illustrative and in sup°port of the proposition that all interests in the land were represented by Mrs. Curtis and her trustee, and their joinder as parties was sufficient.

Where such a power in trust follows in a grant upon the creation of an authorized express trust, I think the true principles of construction underlying the question of interests to be, that, during the continuance of the preceding trust estate the whole title is in the trustee, subject to the execution of Ee trust, and that the reversion is in the grantor and his heirs, subject to the execution of the power in trust; that the disposition of the estate after the grantor’s death, by way of a power in trust to convey to members of a class who may then be ascertained, gives to any then existing individuals who might fall within the description of that class an interest purely contingent, as well as future in its nature; and that the destruction of the estate in the grantor'and trustee, as by proceedings in equity to foreclose a prior mortgage, destroys it as to the intended beneficiaries of the power in trust, by preventing the operation of both power and statute, through which alone their interests would come.

The recent decision of this court,'in its second division, in the case of The U. S. Trust Co. v. Roche, 116 N. Y., 120; 26 N. Y. State Rep., 394, is much in point. A conveyance had been made of real estate to a trustee, in trust to receive the rents and profits during the life of the prospective wife of the grantor and, after her death, in further trust, to sell and to divide the proceeds among the issue of the marriage, in case there were any living. After the marriage the realty was mortgaged. Default occurring in payment, foreclosure proceedings were instituted It was objected as a defense that a child of the marriage, living and of full age, was a necessary party. Follett, Oh. J., delivering the opinion of the court, held that the joinder of the child was not necessary, as he “ had not a vested interest in the subject of the trust, nor in its avails. His interest is contingent upon his surviving his mother.” The proposition was not reasoned upon, but was nakedly stated and assented to by the members of that court.

Our conclusion is that at the time of the foreclosure proceedings the then living children of Mrs. Ourtis did not have any estate in the lands in question and their equitable interests were all in abeyance. The whole estate was transferred to the trustee, and every interest not embraced in the trust remained in the grantor. Until her death terminated the estate in the trustee, no estate could vest in any others. The happening of the event which would render the trust power to convey enforceable in favor of persons then ascertained would set in operation the statute and vest the estate in those persons ; but as meanwhile she and her trustee had been divested of the estate, none remained to which future interests might attach.

The .importance of this case, in the large amount of property involved, as well as in the legal questions presented, and the great skill and ability with which these questions have been argued by counsel, warrant this somewhat extended discussion of the grounds upon which I advise an affirmance of the judgment appealed from.

The judgment should be affirmed, with costs.

All concur, Rtjger, Oh. J., in result, except Andrews, J., dissenting.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    The People ex rel. The West Shore Railroad Co., App’lt, v. Victor Adams et al., Trustees of Little Falls, Resp’ts. The People ex rel. The West Shore R. R. Co., App’lt, v. Warren Edick et al., Trustees, Resp’ts.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Taxes—Villages—Powers of trustees of Little Falls as to railroad LANDS.
    Although the general statutes do not require town assessors to assess the real property of an individual or corporation separately according to the particular district or locality in the town where it may be located, there is no objection to their exercising this discretion, and where they have made a separate assessment for lands within a" village, it furnishes on the face of the roll the valuation of the property within such village which the trustees are bound to adopt and follow, unless subsequent changes in valuation have occurred.
    3. Same—Little Falls. .
    The village assessors of Little Falls are bound in making up the general village tax roll to adopt “ as far as practicable,” the valuations of railroad lands made the previous year by the assessors of the towns of Little Falls and Danube, portions of both of which towns were included in said village. The power given by the charter of the village of Little Falls to the trustees to “reduce or add to the valuation” is confined to the exceptional cases mentioned therein, “for increased value by reason of improvements, or for diminished value by reason of damage by fire or flood.”
    3. Same—Laches.
    A party complaining of an assessment, who has neglected to appear before the assessors or body authorized under the system provided by the tax laws to correct an erroneous assessment and seek his remedy there, cannot after the tax has become confirmed avail himself of the remedy given by the act of 1880.
    These appeals are from orders of the general term of the fourth department reversing orders of the special term in certiorari proceedings taken under chap. 269 of tne Laws of 1880, to review assessments of the relator’s property in the village -of Little Falls, made by the village trustees in the years 1886 and 1887. The orders of the special term reduced the assessment of 1886 from $40,000 to $18,661 and the assessment of 1887 from $40,000 to $19,200.
    The village of Little Falls includes territory in both the town of Little Falls and the town of Danube, across which the track of the relator, The West Shore Railroad, is laid upon land owned by the company and its track is continued also through the territory of the two towns outside of the village. The real estate of the company in said village in 1886 and 1887, at the time of the assessments in question, consisted of about nineteen acres of land, and upon that part within the town of Little Falls in addition to the tracks of the company were a station house, freight house and three dwelling houses. In 1885 the assessors of the town of Little Falls assessed the property of the relator in the town (including as well the property within the village of Little Falls as that outside of it) at the sum in the aggregate of $40,000, the entry on the assessment roll being, “New York, West Shore & Buffalo Railway Company, 45 57-100 acres of land, district Ho. 1, $15,000; district Ho. 5, $12,500 ; district Ho. 8, $12,500; total amount of real estate $40,000.” The assessment of the town in 1886 was in. substantially the same form. In 1885 the assessors of the town of Danube assessed the property of the relator in that town (including its property in that town lying within the village of Little Falls) at the aggregate sum of $60,000 and filed in the town clerk’s office a certificate of apportionment, apportioning the valuation among the school districts in the town and the apportionment to school district Ho. 1, was $3,661. The assessment of the relator’s property in the town of Danube in 1886 on the town assessment roll was $60,650.
    The assessment roll also cdptained the following entry: “West Shore Railroad apportionments of the several school districts in the town of Danube : District Ho. 1 is apportioned $19,600; district Ho. 3 is apportioned $16,000; district Ho..5 is apportioned $25,850; Little Falls district Ho. 1 is apportioned $4,200.” Little Falls school district Ho. 1 is wholly within the village of Little Falls and embraces all the territory of the town of Little Falls and Danube included in the village, and all the property of the relator liable to taxation .for village purposes is situated within said district. In 1885 the village assessors assessed the property of the relator in the village at $20,000. In 1886, the clerk of the village, preparatory to making the village assessment of that year, copied the assessment roll of the town of Little Falls of the previous year (1885), and in respect to the relator’s property incorporated the assessment as it stood on the town roll, viz: as consisting of 45 47-100 acres of land of the valuation of $40,000, but omitting the valuation apportioned therein to school district Ho. 1 of $12,500.
    The land of the relator in the whole town of Little Falls consisted of 45 47-100 acres, of which only about 14 acres were within the village. The village assessors, however, adopted the assessment as copied from the town roll, and the village tax of 1886 against the relator purported to be on 45 47-100 acres of land at the valuation of $40,000.
    The village tax of 1887, was made in substantially the same way.
    The village clerk in making a copy of the assessment roll of the town of Danube in 1886 and 1887, seems to have wholly disregarded the assessment of the relator’s property on that town roll, and the village assessments in these years do not appear to have been based on any specific valuation of the relator’s property therein. It consisted of about five acres of land and was, as may be inferred, of .comparatively little value. There had been no change in the property of the relator subject to village taxation, and no increase in value from the time of the assessment made Toy the towns of Little Falls and Danube respectively in 1885, up to the making of the village assessments in 1886 and 1887. In each of the years 1886 and 1887 the trustees of the village paused notice to be published that the assessment rollas copied by the clerk, and amended and changed by the trustees, would be left for inspection at a place named, and that the trustees would meet to hear objections, etc., but no notice was given at any time of the final completion of the roll.
    The relator did not appear on grievance day in 1886 to object to the assessment, because, as was claimed, it had been informed that the valuation of its property would be the same as in 1885, but it did appear in 1887 and objected to the assessment of that year. The roll in neither year was verified. The relator, on March 25, 1887, applied for a certiorari to review the assessment of 1886. The assessment roll of that year was then in the' hands of the collector of the village, but he returned it to the village clerk March 29, 1887, before the return to the certiorari was made. Similar proceedings were taken by the relator October 11, 1887, to review the assessment of that year, the assessment roll being then in”the hands of the collector. He made return on his warrant January 3, 1888, prior to the decision of the special term. The relator had paid its tax in each year prior to the application for the certiorari. The reduction made by the special term was made to conform the assessments in each of the years 1886 and 1887 to the apportionments made by the town assessors of the towns of Little Falls and Danube in the year preceding the village assessments of the valuation of the relator’s property to school district Ho. 1.
    Other facts appear in the opinion.

      Hamilton Harris, for app’lt; Myron G. JSronner, for resp’ts.

       Affirming 33 N. Y. State Rep., 398.

       Reversing 33 N. Y State Rep., 404.

   Andrews, J.

The defendants are undoubtedly right in their contention that the act, chap. 694, of the Laws of 1867, was intended to regulate valuation in towns of property of railroad corporations for purposes of school district taxation only, and that the statute does not contemplate that the apportionment therein provided to be made should be indicated on the town assessment roll, but by a certificate of the assessors, to be prepared and filed in the town clerk’s office after the roll is completed. This will plainly appear by a brief reference to the statutory system of taxation for school purposes, as supplemented by the act of 1867.

The statute, chap. 555, Laws of 1864, §§ 15, 65, provides for the assessment in each school district of the state of taxes for certain school purposes, upon their being voted at a district meeting, and, when authorized, they are to be assessed upon all the real and personal estate in such district, including the property of corporations liable to taxation therein. By § 67 of that act the valuation of property for the purposes of school district taxation is to be ascertained as far as possible from the last assessment roll of the town. By chap. .694, of the Law's of 1867, entitled “An act in relation to the valuation of the property of railroad companies "in school districts for the purpose of taxation,” it is made the duty of the town assessors, within fifteen days after the completion of their annual assessment list, to apportion the valuation of the property of every railroad company appearing on such list “ among the Several school districts in their town, in which any portion of said property is situated,- giving to each of said districts their proper portion according to the proportion that the value of said property in each of such districts hears to the value of the whole thereof in said town.” Sec. 1.

The second section of the act declares that the apportionment shall be in writing, signed by the assessors, or a majority of them, and shall set forth the number of each district, and the valuation apportioned to each, and that it should be filed in the office of the town clerk by the assessors within five days after being made, and the section concludes by declaring that “ the amount so apportioned to each district shall -be the valuation of the property of each of said companies, on which all taxes against said companies in and for said districts shall be levied and assessed until the next annual assessment and apportionment.”

The third section authorizes the supervisor of the town to niake the apportionment on the application of the trustees or board of education of any district, or of any railroad company, if the assessors shall neglect to make the same.

This act was extended by chap. 414 of the Laws of 1884, so as to embrace the property of telephone, telegraph and pipe line companies. The sole object of this act, as is manifest from its title and provisions, was to prescribe the basis for taxing the property of railroad companies for school district purposes, and how the valuation should be ascertained as between school districts, where the company had property situated in several school districts within the town. It had no relation to general taxation for town purposes. But it made the valuation of the last town assessment roll the valuation for school district taxation, and where the property was situated in several school districts each was to be apportioned by the assessor out of the aggregate valuation its proper share to be specified in the certificate of apportionment. The statute does not make the certificate a part of the town roll. It contemplates a separate and distinct paper to" be made and filed after the roll is completed.

The scheme of taxation in the village of Little Falls, for village purposes, is prescribed in the village charter. The charter, chap. 158, Laws of 1873, § 39, declares as follows: “ The trustees shall constitute the board of assessment of the village for the purpose of valuation and taxation; the trustees shall cause to be copied from the last assessment roll of the several towns, parts of which comprise" the territory of said village, the names and valuation of all persons and corporations taxable within the village, as made by the town assessors, and the same shall be deposited with the clerk of the board, or one of the trustees, subject to inspection by any person interested.”

Then follows a provision requiring that notice shall be published that the roll has been deposited for inspection, and appointing a time and place when and where the trustees will meet to hear objections and make.corrections, and the section concludes as follows: “ The said town valuation shall be adopted by the trustees for the valuation of the property thereon within the village, subject to be assessed for village taxes, as far as practicable, subject, however, to be corrected of any errors which may appear thereon, or for any change of ownership of property, or for increased value by reason of improvements, or for diminished value by reason of fire or damage by flood, and subject to have the names of persons added or omitted, with valuations accordingly, as changes have taken .place, or when names or property have been omitted which are subject to taxation, and may reduce or add to the valuation, and the trustees are hereby invested with the same powers within the village in respect .to valuation and assessment of taxes, including the power to administer oaths, as town assessors have in respect to the valuation and assessment in towns.”

. It is contended on behalf of the relator that the village assessors in making the assessments of the relator’s property in 1886 and 1887 violated the charter in that they did not adopt the valuation made by the towns of Little Falls and Danube, appearing on the town assessment rolls in the year preceding the respective assessments. The answer made to this complaint is two fold; first, that the charter requires the trustees to adopt the town valuations only “ so far as practicable,” and that as the town valuations related to the aggregate property of the relator as well that within as that outside of the village the adoption of those valuations was impracticable, and second, that the provision in the charter that the trustees may “reduce and add to the valuation,” and conferring upon them the powers of town assessors, authorized the trustees in their discretion to change the-town valuation and in substance make an original assessment of the relator’s property when in their judgment it was proper to do so. ."We think neither of these answers is sufficient

It is very apparent from reading the evidence that the increase of the village assessment of the relator’s property from $20,000 in 1885, to $40,000 in 1886, originated in a mistake of the village clerk in copying the town assessment rolls. The whole acreage and valuation appearing on the town assessment roll of the town of Little Falls was copied by the clerk in preparing the village roll. It was thus made to appear that the relator owned 45 47-100 acres of land, of the valuation of $40,000, in the village, whereas that was the whole quantity owned by the relator in the town and of which only about fourteen acres were within the village. The clerk omitted to copy the town valuation in the town of Danube and apparently omitted from the list the five acres owned by the relator in the. village included vtithin the limits of that town. When the trustees of the village acting as assessors came to examine the assessment roll copied by the clerk, they left the assessment against the relator to stand as copied, neither correcting the error in the acreage nor changing the valuation.

There is evidence that they examined the property and considered the question of valuation and reached the conclusion that the valuation of $40,000 was the fair and just value of the relator’s property within the village. But it is clear from the evidence that in reaching this conclusion they wholly disregarded the valuation of $12,500 apportioned in the town assessment roll of the town of Little Falls as the valuation of that part of the relator’s property in the town within the village. This was, we think, erroneous.

By § 39 of the village charter the valuation of property in the town assessment rolls was made the general rule of valuation for village taxes. The assessors of the village were required to adopt these valuations “ as far as practicable,” subject to certain exceptions. The valuation of the relator’s property in the town of Little Falls lying within the village was plainly indicated on the assessment roll of that town. The fact that it was primarily inserted as a way of discharging the duty of the town assessors to apportion the whole assessed value of the relator’s property in the town among the school districts as prescribed b^' the act of 1867, does not alter the fact that it stood as a valuation by the town assessors of the relator’s property within the village. The general statutes, it is true, do not require town assessors to assess the real property of an individual or corporation separately, according to the particular district or locality in the town where the property may be located. But we can perceive no objection in. point of law to their exercising this discretion. In this case it was done for a particular purpose and whether or not it was a compliance with the law of 1867, it did furnish on the face of the assessment roll the valuation of the relator’s property in the town of Little Falls located within the village, and this valuation the trustees were, we think, bound to adopt and follow, unless, indeed, the valuation made by the town assessors had changed by reason of circumstances mentioned in § 39, which is not claimed.

The error in the assessment of 1886 was not cured because of the fa.ct that in the valuation of the relator’s property by the town assessors of Danube in 1885 the valuation of that part of it within the limits of the village was not separately stated, thereby rendering it necessary that the trustees should make an original valuation of that portion of the relator’s property. They were bound to follow the town valuations as far as practicable, and in making the assessment they paid no attention to the valuation on the town roll of the town of Little Falls. That at least should have been incorporated as an element of the assessment.

The second answer to the allegation of error, viz: that the trustees had an absolute right to disregard the town valuations under that clause in § 39 of the charter which declares that the trustees “ may reduce or add to the valuation,” depends upon the construction of this clause in its relation to the other parts of the section. We concur in this respect in the opinion of one of the judges below, that the power given by the section to “ reduce or add to the valuation ” is confined to the exceptional cases mentioned therein. By the prior clauses in the section power was given to the trustees to add to or change the town assessments in certain specified cases, and among others “'for increased value by reason of improvements or for diminished value by reason of damage by fire or flood.” It is difficult to suppose that the legislature after specifying these cases, could have intended by the subsequent general words to give an unrestricted power to the trustees, in every case where in their judgment the valuation was erroneous, to change- the valuation appearing on the town rolls. The assessment of 1887 was erroneous for the same reasons as the assessment of 1886 and for the additional reason that the assessment roll of the town of Danube for the year 1886 contained a separate valuation of the railroad property of the relator within the village. The point is urged that the relator has lost his remedy under the act of 1880 by laches.

This court held in the case of The People ex rel. Tel. Co. v. Commissioners of Taxes, 99 N. Y., 254, that a party complaining of an assessment, who had" neglected to appear before the assessors or body authorized under the system provided by the tax laws to correct an erroneous assessment, and seek his remedy there, could not, after the tax had become confirmed, avail himself of the remedy given by the act of 1880. We are of ojainion that this case applies and bars this proceeding as to the tax of 1886. The relator did not appear on grievance day to have the assessment corrected, but relied on information, not qfficially given, that the assessment would be the same as in 1885. This is rather a case of , over-assessment than of a void assessment, as. to which possibly a definite rule would apply. The trustees had jurisdiction to assess the relator. They adopted an erroneous principle of valuation. The proceeding, as to the assessment of 1887, stands on a different footing. The relator did appear and object to the assessment in that year, and unavailingly. sought its correction.

The point that the certiorari was not brought in time is answered by the fact that no notice was ever published of the final completion of the roll, and that the limitation prescribed in § 9 of the act of 1880 does not, therefore, apply, and also by the cases of People ex rel. R. R. v. Haupt, 104 N. Y., 377; 5 N. Y. State Rep., 770; People ex rel. R. R. v. Hicks, 105 N. Y., 199; 7 N. Y. State Rep., 359: People ex rel. Church Holy Communion v. Assessors, 106 N. Y., 671; 8 N. Y. State Rep., 709. The fact that the assessment rolls, of which correction is sought, were not in the posssession of the trustees when the writs were issued is, we think, unimportant. Under the act of 1880, the original assessment rolls are not required to be returned in answer to the writ. They were in possession of the trustees or the clerk when the orders of the special term were made, and, moreover, the act contemplates granting of relief, although the tax may have been collected, by reimbursement the following year.

We think the order of the general term reversing the order of the special term, based on the tax of 1886, should be affirmed, and that the order reversing the order of the special term, based on the tax of 1887, should be reversed, and the order of the ■special term affirmed, without costs of this appeal to party. either

All concur.


author: O’Brien, J.

text:
    In the Matter of the Revocation of the Last Will and Testament of Ann Voorhis, Deceased.

      (Court of Appeals,

      Filed February 24, 1891.)

    Will—Execution—Publication.
    A substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient. , Where one of the witnesses testified that either the deceased or the counsel said, when he signed the instrument, that it was the will of the deceased, and the other witness testified that before he signed the paper the counsel asked the deceased “if she wished these gentlemen to witness her will and she said yes,” and the counsel, corroborated them, it is sufficient proof to sustain the finding of the surrogate that the will was published.
    Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate denying motion to vacate and annul the probate of a will and confirming the probate thereof.

      Wm. B. Hornblower, for app’lt; Edward T. Bartlett, for resp’t

       Affirming 27 N. Y. State Rep., 368.

   O’Brien, J.

Ann Voorhis died in the city of New York January 30, 1882, leaving a last will dated October 20, 1879, and with■out children, parents, brother or sister. Her nearest relatives were nephews and nieces and children of deceased nephews and nieces. The will was, after a contest, admitted to probate November 9, 1885, and about a year thereafter one of the nieces petitioned the surrogate for revocation of probate. This application resulted in another trial and in a decree of the surrogate sustaining the will and probate, which the general term has affirmed.

The objections to the will are want of capacity of the testator to make it; ignorance in part of its provisions when she executed it, .and failure to comply with the provisions of the statute as to its execution.

It does not appear that the will was read to the testatrix at the time of execution, or that she read it herself ; but it does appear that she called' upon the counsel who drew it at his office, communicated to him the disposition which she wished to make ■of her property, and that he drafted the will according to her directions and read the draft to her at her house, subsequently, and made corrections and changes at her suggestion and "that the will in question is a copy of the paper then used and corrected. With respect to the competency of the testatrix, the evidence .shows that she was a woman of very little, if any education, quite ignorant, penurious, excitable and changeful; but we think there was no reason to believe that she was not fully capable of making a will. ^ She certainly understood the nature and effect of the •transaction, had knowledge of the property she was about to dispose of and recollection of the personshaving a natural claim upon .ber bounty. The most favorable view that can be taken of the case for the contestants is, that upon the question of capacity the testimony was conflicting. The surrogate has found, however, upon this evidence, that she was of sound mind and memory and capable of making a will, and as the general term was of the same opinion we have no right to review the facts. Hewlett v. Elmerr 103 N. Y., 156; 3 N. Y. State Rep., 1; In re Valentine, 100 N. Y., 607; In re Yates, 99 id., 94; In re Darrow, 95 id., 668; In re Cottrell, id., 329; Davis v. Clark, 87 id., 623; In re Higgins, 94 id., 554; In re Ross, 87 id., 514; Marx v. McGlynn, 88 id., 357.

There seems to be no doubt that the deceased intended to make another will. In the early part of the year 1882, one was drawn for her, at her request, to execute, the provisions of which are much more complicated and difficult to understand than that now under consideration. The last paper was more favorable to the relatives, as the bequest to the Bible Society and the Home • Missionary Society of the bulk of the estate were wholly omitted. The contestants were aware of its provisions and it did not seem to occur to any of them then that the deceased was incapable of making a will. It, however, was never executed for the reason that the deceased was taken suddenly ill and became unconscious and remained in that condition until her death. Had it been executed before her illness there is every reason to believe that it would have been perfectly valid, and certainly a more satisfactory disposition of her property, so far as her relatives were concerned, and possibly, on the whole, more equitable and just. But it is enough for us to know that, upon the findings of the surrogate, supported by the evidence, she was capable of making the will in question, and when made it expressed her wishes as to the disposition of her property, and that it never was legally revoked.

The deceased signed the will at her house in the presence of the two subscribing witnesses who attended there in compliance with her request and also in the presence of the counsel who drew it and was present by appointment. í'hese three persons testify that they saw the deceased sign the paper without any aid or assistance. The two subscribing witnesses then in her presence and in the presence of each other signed their names as such, and the only question that arises in regard to the proper execution of the instrument is respecting the formality of publication. On that point the fact must be kept in .view that the deceased not only requested the attendance of the witnesses at the execution of the instrument but also the experienced counsel who drew it, in order that every formality necessary to the valid execution of the instrument should be complied with. It is extremely unlikely under these circumstances that such an important requirement of the statute was omitted. The surrogate has found as a fact that the deceased duly published and declared the instrument to be her will in the presence of the two witnesses and the attestation clause recites the publication of the will in the presence of both witnesses. One of the witnesses testified that either the deceased or the counsel said when he signed the instrument that it was the will of the deceased. The other witness testified that before he signed the paper the counsel asked the deceased “if she wished these gentlemen to witness her will, and she said yes;” and the counsel swears that the deceased signed her name to the paper “and the two gentlemen after I Trad asked her if she had signed and sealed this paper .and published and declared it as her last will and testament and requested these gentlemen to execute it as witnesses, and they then signed it as witnesses.” This proof was sufficient to sustain the finding of the surrogate that the will was published. A substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient, and that was established. Gilbert v. Knox, 52 N. Y., 125; Matter of Will of Cottrell, 95 id., 329; Matter of Higgins, 94 id., 554.

The exceptions taken at the hearing before the surrogate do not present any question of sufficient importance to warrant us in disturbing a result reached only after much litigation. We are of the opinion that they were correctly disposed of in the courts below.

The judgment should be affirmed.

All concur.


text:
    John L. Macaulay, Surviving Partner, App’lt, v. Joseph R. Palmer, Resp't.

      (Court of Appeals,

      Filed February 24, 1891.)

    1. Partnership—Liability of firm for act of partner.
    Plaintiff and his partner, now deceased, were engaged in buying cotton and running it through the rebel lines during the late war. They arranged with defendant and one Kingsbury to procure a purchaser for the cotton and deposit the net proceeds with a banker, which was done. Subsequently Kingsbury, for the purpose of procuring his release from arrest, personally directed the banker to return the deposit to the purchasers. The cotton had never been delivered, as no permit could be obtained for its delivery through the lines to such purchaser. Held, that Kingsbury had the power to bind the defendant by rescinding the sale and returning the money, and this discharged defendant from liability for the money deposited.
    S. Same.
    The portion received by defendant and Kingsbury, as commissions for the sale of the cotton, should also have been restored to the purchasers, but the latter were the only parties that were entitled to or that could complain.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment dismissing plaintiff’s com■plaint after trial at circuit.

      L. Laflin Kellogg, for app’lt; George Zabriskie, for resp’t.

       Affirming 25 N. Y. State Rep., 969.

   O’Brien, J.

The plaintiff alleged that he -is the surviving member of a firm which, in the year 1863, existed, composed of himself and his brother; that in November of that year the firm •owned 167 bales of cotton at or near Brownsville, in the state of Texas, of the value of about $150,000; that in the month of November of that year the firm entered into an agreement with the defendant, Joseph E. Palmer, and one Robert B. Kingsbury, whereby the latter, “jointly and severally,” promised and agreed to take the cotton and sell the same, and after deducting twenty-five per cent of what was received from the same for their services, account for and pay over the balance to the plaintiff’s firm that they sold the cotton and received therefor the sum of $93,684.50, no part of which has been paid to the plaintiff orhis firm, but has been appropriated to their own use. The parties-were all, át the time of the agreement, residents of Texas, but at-the time this action was commenced the plaintiff was, and for several years before had been, a resident of the city of New York, and the defendant of the state of New Jersey. After the commencement of this action against Palmer, Kingsbury died in. Texas, where-he resided, no process having ever been served on¡ him in the case, and the issues arise solely upon Palmer’s answer.

The allegations of the complaint, except the death of the plaintiff’s co-partner, are all denied and payment alleged. Then the six and ten years statutes of limitations of this state are interposed as a defense, also the four years statute of Texas and the six years statute of New Jersey. It is then alleged that the cotton was procured by the plaintiffs for the purpose of selling in aid of the rebellion.

The plaintiff was nonsuited and the principal question here is whether there was any evidence which he was entitled to have submitted to the jury.

It does not appear from the record that the statute of limitations was considered by the court below as constituting a defense. Both parties left Texas within, at most, a few months after the trans- ' action. The plaintiff has never resided in New Jersey and the defendant did not remain in New York long enough for the statute to run. As the statute does not seem to be made a ground of defense in the argument for the defendant we may dismiss that branch of the case without further examination.

It does not appear that the alleged illegal character of the contract entered into the decision of the case in the courts below. The point is not passed upon or referred to at all in the opinion of the general term. Generally it may be said that contracts between the citizens of the states in rebellion against the authority of the United States, made during the war and not in aid of the rebellion, were not invalid. Cutner v. U. S., 17 Wall., 517; Mitchell v. U. S., 21 id., 350; Gavinzel v. Crump, 22 id., 308; Conrad v. Waples, 96 US., 279.

In this case it was alleged that the cotton was procured by the-plaintiffs for the purpose of sale in aid of the rebellion. It is unnecessary to consider now the legal principles applicable to a defense of this character, because the fact has not been found or conclusively established and the evidence on the point was of such a character that the court could not pass upon the question as one-of law.’ There was a question of fact for the jury to determine before the law could be applied. One of the grounds upon which the general term affirmed the judgment of nonsuit was that there was a presumption of payment arising from the lapse of time wholly independent of the statute of limitations. This presumption, however, is not one of law that is available to a defendant as. a bar to the action on the claim, but one of fact for the jury.

Under the defense of payment the lapse of time may be considered in connection with all the facts and circumstances of the case, and it may sometimes with the other circumstances warrant the inference that the claim was paid. The nonsuit in this case cannot be upheld upon the ground that from lapse of time there is a conclusive presumption that the claim was paid. The facts and circumstances disclosed leave no ground for supposing that any part of the proceeds of the sale of the cotton was ever actually paid to the plaintiff or the firm. The most that the defendant was entitled to on the question of the lapse of time, was to have it submitted to the jury as evidence in support of the defense of payment. Phillips on Ev., 4th Am. Ed., vol. 2, p. 171; 1 Greeleaf on Ev., 13 Ed., § 39; Jackson v. Sackett, 7 Wend., 94; Bean v. Tonnele, 94 N. Y., 381; Parker v. Foote, 19 Wend., 309; Wood v. Squires, 1 Hun, 481; Miller v. Smith, 16 Wend., 443; Jackson v. Hotchkiss, 6 Cow., 401; Mayor v. Horner, 1 Cowp., 109; Darwin v. Upton, 2 Saund., 175, Note 2. If this action was brought against the defendant as agent or bailee of the cotton upon an allegation that it had been placed in his hands for sale and he had not accounted for it, then it would probably be incumbent upon him to account for its value, or excuse himself by proof that it. was taken from his possession by some power that he could not resist Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y., 57; 33 N. Y. State Rep., 175. But the action was not tried, nor does the plaintiff in the action seek to recover upon that theory, but upon the ground that the defendant has received a specific sum of money, as upon a sale of the cotton, which he has not paid over. The judgment must stand unless there was evidence upon this issue to submit to the jury.

The defendant and Kingsbury undertook jointly to sell the cotton for the plaintiff’s firm, and were jointly interested in the profits of the transaction as such. Their obligations to the plaintiff, and their power to bind each other in the conduct of the enterprise, must be determined upon the general principles applicable to partnership transactions. It was, however, upon the evidence a particular or special as distinguished from a general partnership, and the power of Kingsbury to bind the defendant extended only to acts necessarily connected with the sale and delivery of the cotton. Williams v. Lawrence, 47 N. Y., 462; King v. Sarria, 69 N. Y., 25; Union Bank v. Underhill, 102 N. Y., 336; 2 N. Y. State Rep., 48.

It appears from the evidence that on the 25th day of December, 1863, the cotton was at Point Isabel, a place on the Rio Grande river a few miles below Brownsville, and that the place was then in possession of the military forces of the United States. The defendant and Kingsbury sold the cotton to Viuda Tarnava & Co., a firm at Matamoras, Mexico, as appears from the following paper and the testimony of witnesses in the case:

“ Brownsville, Texas, December 25, 1863.
“Viuda Tarnava & Co.:
“ Bought of Robert B. Kingsbury and Joseph R. Palmer, ■ 167 bales cotton, weight 76,820 pounds, at thirty-one cents per pound in coin.......................................$23,814 20 By cash on account............................. 129 42
• $23,684 78
“ Received payment,
“ Robert B. Kingsbury,
“J. R. Palmer.”

At the same time the sellers signed a paper directing Capt. Timothy Owen to deliver to their order the 167 bales of cotton “ now held by him at Point Isabel subject to their order.”

The business of the plaintiff’s firm was conducted in the name of the plaintiff’s deceased brother, James A. Macaulay. On the 28th of January, 1864, he addressed a letter to the defendants, which they received, in which he said: “You will please pay over to Mr. Jose San Roman any moneys that arise from the sale of the 167 bales of cotton made to you under my arrangement” Some time after the receipt of this letter the defendant and his partner received from Yiuda Tarnava & Co., to whom the cotton was sold, the whole of the purchase price, and after deducting therefrom the sums that they were, under the agreement with plaintiff’s firm, authorized to retain for expenses and commissions, •deposited the balance in bags of gold coin, in accordance with plaintiff’s instructions, as appears by this paper:

“Received, Matamoras, Mexico, April 10, 1864, from Robert B. Kingsbury and Joseph R. Palmer, ten thousand six hundred and seventy dollars ($10,670), for account of James A. Macaulay, in payment of net proceeds of one hundred and sixty-seven (167) bales cotton sold for his account..
“J. San Roman.”

The purchasers of the cotton were engaged in business at Matamoras, in Mexico, and though, as appears, they had bought and paid for the cotton, it had not been delivered to them, and, in fact, never was delivered. San Roman was a merchant and banker, with a house at Brownsville and another place of business across the river at Matamoras. It seems that the $10,670 net proceeds of the sale of the cotton to Yiuda, Tarnava & Co. was deposited in the Brownsville house. The failure to deliver the cotton arose from the fact that no permit could be obtained from the military authorities for its delivery, and the order of the sellers to Captain' Owen to deliver to their order was disregarded. The purchasers not being able to obtain the cotton, and having parted with their money, instituted legal proceedings of some kind in Texas against Kingsbury and defendant. It does not appear very clearly just what these proceedings were, but at all events they resulted in the imprisonment of Kingsbury, the defendant having left the state of Texas about that time and before he could be arrested or served with process. The plaintiff’s brother, James A. Macaulay, had left the country for Cuba and Europe about the 1st of February previous, and the plaintiff followed soon after. A few days after the money was deposited with San Eoman, and after the defendant had left the state, Kingsbury, accompanied by a guard of federal soldiers, came to the place of business of San Eoman, in Brownsville, and directed him to deliver the money deposited with him to the purchasers of the cotton. This direction San Eoman complied with and returned the coin to the purchasers in the same packages in which it was received.

The evidence tended to show that when Kingsbury and the defendant sold the cotton it was upon the agreement, express or implied, that they should procure from the military authorities a permit for its delivery to the purchasers, or that the sale was upon that condition. They attempted to obtain the permit, but failed. In this condition of things Kingsbury had the power to bind the defendant by rescinding the sale and returning the money. While it is true that this power to bind the defendant would terminate when the joint enterprise was completed, it cannot be said , that the business of the joint venture was completed until the cotton was delivered.

They had received the money from the purchasers in anticipation of such delivery, and not being able to comply with the prerequisite or condition of the sale, common honesty required that they should restore the money. This operated, under all the circumstances, to rescind the sale and discharge the defendant from liability for the money deposited with Sam Eoman. He might, under certain circumstances, still be liable as bailee of the property, but, as already observed, this case is not brought for that purpose.

But a portion of the- money received from Viuda Tarnava & Co. was retained and applied by the sellers as- their commissions. The evidence tends to show that this was also paid back to the purchasers by Kingsbury, but the testimony on that point is not conclusive, and if it was material in this case whether it was paid back or not the evidence on that point should have been submitted to the jury. But as the sale was never completed by a delivery of the cotton, and, as it was rescinded by Kingsbury, then all the money received from the purchasers should have been restored to them, and if it has not been they are the only parties that are entitled to it or can complain.

It is claimed in behalf of the defendant that he has not received any part of it, and there is some evidence indicating that to be the fact; but if he has he should restore it to the parties who paid it in anticipation of the delivery of the cotton to them, an event which never was brought about.

In a word, the case stands as if the defendant and Kingsbury never contracted to sell the cotton and never received any money whatever for it Then it would not be claimed that an action would lie for a sum of money received as upon a sale, because no sale was made and no money received. It does not appear what became of the cotton. The argument on both sides seems to assume that it was taken by the military, as it probably was. The burden of showing what became of it would rest upon the defendant if this was an action for its negligent loss or conversion. But we find no evidence in the case which would warrant the jury in rendering a verdict for the plaintiff for the money received from Yiuda Tarnava & Co. under all the circumstances of the case.

The judgment must, therefore, be affirmed.

All concur.