source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Hannah Griffen, Plaintiff and Respondent, v. Lewis S. Ford, impleaded with Henry Byrns, Jacob V. D. Wyckoff, Trustee, and others.
    J. Thomas, by his last will, devised all his estate to trustees, in trust, to apply so much of the rents and profits as might be necessary to the support and maintenance of his wife during her life, and to divide the residue among his three children named in the wifi, during their lives. Two, only, of the children, and the wife, survived the testator.

      Meld, that the trust created no suspense of the power of alienation beyond the lives of the two children living at the death of the testator.

      Meld, that the provision for the wife was in the nature of an annuity, and was, therefore, a legacy, and a charge within the meaning of sub. 2 in § 55 of the Statute of Uses and Trusts, and that it was to this sub. of § 65 that the trust (created for its satisfaction) must be referred.

      Meld, therefore, that the provision created no suspense of the power of alienation during the life of the wife. The will, as construed by the Court, directed that the estate of the trustees, as to the real estate, should cease upon the death of all the children, and the fee then go to their heirs.

      Meld, that if the provision for the wife suspended alieriation during the continuance of the triist, the suspense ceased when the trust was determined; and the provision then became a mere charge upon the lands m the possession of the heirs as owners.

      Held, that a charge upon lands in the possession of the owner, neither at common law nor under the statute, creates a trust suspending alienation, or any trust whatever. Such a charge is simply a debt, for the payment of which the lands are a security, and it imposes no restrictions upon the transfer of the debt or of the lands.
    The testator authorized his trustees to grant leases for a term not exceeding twenty-one years from the making thereof.

      Held, that these words confined the trustees to a grant of leases in possession, and that when a power to lease is thus limited, a lease, to commence in possession upon a future day, is wholly void.

      Held, therefore, that a lease in question, which was executed and delivered on the 20th of December, 1849, for a term of years not to commence until the 1st of May, 1850, was void in its creation upon its face.
    The testator directed that his trustees, in making leases, should reserve the best and most improved rent that could be gotten; and it was proved upon the trial, and found by the Judge, that when the lease in question was executed, a much higher rent than that reserved could have been obtained.

      Held, that a trustee, directed to obtain the best rent, is bound to the exercise of reasonable diligence,"as well as of good faith; and as it has clearly appeared that this diligence had not been used, the lease in question must, upon that ground, be adjudged to be void.
    A lease for a longer term of years than is authorized by the power under which it is made, although bad at law, is good in equity for a term corresponding with tire power, and is void only for the excess.
    The counsel for the appellant insisted, that as the whole title, legal and equitable, in the house and lot to which the controversy related, was vested in the existing trustee under the will, he was the person alone competent to maintain the actionj and that, as he was not the plaintiff, but had been made a defendant, the complaint ought to be dismissed.

      Held, that as the object of the action, so far as relief was sought against the trustee, was to enforce his performance of his trust, it was properly brought by a person for whose benefit the trust was created, and was warranted by the express words of the very section in the B. S., that had been relied on in support of the objection. (§ 60, 1 B. S. p. 129.)
    Judgment for plaintiff affirmed with costs.
    (Before Dues, Boswobth, and Slossom, J.J.)
    Heard March 5;
    decided April 25, 1857.
    This action comes before the Court, at General Term, on an appeal by the defendant, Ford, from the judgment entered therein on the trial thereof by the Court, without a jury. It was brought by Hannah Griffen, as plaintiff, against Henry Byrns, William J. Hodges, Lewis S. Ford, William Sands, William G. Lyon, and Jacob V. B. Wyckoff, trustee.
    The plaintiff claimed 'to be entitled, under the will of her father, Jacob Thomas, to the rents and profits of a house and lot in Nassau street, in the city of New York, and the 'relief demanded by her complaint was, that a certain lease of the premises, made by the defendant Byrns, a former trustee, to the defendant Hodges, and also a lease of the same made by the defendant Hodges to the defendant Ford, should, as fraudulent, be declared inoperative and void; that each of these defendants should be enjoined from setting up any claim under or in virtue of these leases, and from taking any measures to possess or retain the possession of the premises by virtue thereof; and -that they should be ordered to execute releases, and surrender the possession of the premises to the present trustee, Wyckoff. Wyckoff was made a defendant, upon the allegation that he had refused to be joined as a plaintiff The defendant Ford had, in the first instance, demurred to the complaint, but his demurrer was overruled, with liberty to answer in twenty days, and, in pursuance of the liberty so given, he put in an answer. On his present appeal, he insisted that such order was erroneous. Byrns, Hodges, and Ford, the only defendants who answered, put in separate answers, and each, in his answer, insisted on the validity of the leases in question, as made in good faith, and fully authorized by the will of Jacob Thomas; and each also insisted that Byrns had acquired a valid title, by a conveyance in fee, from one Sarah Ann Sands. Upon the issues thus raised the cause was tried, before Mr. Justice Bosworth, without a jury, in April, 1856, and a judgment was rendered by him, granting, substantially, the relief demanded by the complaint. From this judgment Ford, and he only, appealed.
    The following are the material facts of the case, as collected from the pleadings, the evidence upon the trial, and the finding of the Judge.
    The plaintiff’s counsel produced, and with the consent of the opposite counsel, read upon the trial a certified copy from the Records of the will of Jacob Thomas, who, it was admitted, died seized of the premises, and also read a copy of a codicil to the will. The will was made and published on the 15th of December, 1828. The codicil on the 26th of April, 1831. Between the making of the will, and of the codicil, the testator’s son, James Thomas, died—and the sole effect of the codicil, after confirming all the trusts and provisions of the will, was to appoint one Brigham Howe an executor and trustee, in place of the deceased son. Howe never qualified, and refused to act. As all the material questions in the cause turned upon the construction of the provisions of the will, which are more or less connected with each other, an entire copy of the instrument seems necessary to be given. It reads as follows:
    “ In the name of God, Amen. I, Jacob Thomas, of the City of Hew York, being of sound mind, memory and understanding, but considering the uncertainty of human life, do make this my last Will and Testament in 'manner following, viz: My soul I recommend to the mercy of Almighty God, and I desire that my body may be interred with decent Christian burial, in such spot as my executors may think convenient and proper for that purpose. In the first place I charge all my estate and effects of every description with the payment of my debts, funeral and testamentary expenses, and such legacies and provisions as I shall hereinafter bequeath and make subject thereto. I give, devise and bequeath unto Samuel F. Randolph, of the City of Hew York, Grocer, and my son James, of the same place, and to their heirs and assigns: All my messuages, lands, lots, estates, tenements and hereditaments, with the appurtenances wheresoever situate, and particularly my two houses and lots, which together are fifty feet square or thereabouts, situate in Hassau Street in the City of Hew York, aforesaid, and known and distinguished in said street by numbers forty-six and forty-eight, (Hos. 46 and 48,) and also all my personal estate and effects whatsoever and wheresoever: To have and to hold the same during the natural lives of my children, upon the uses and trusts hereinafter mentioned, to them, the said Samuel F. Randolph and my said son James Thomas, their heirs, executors, administrators and assigns for ever, but upon the trusts nevertheless, and to and for the intents and purposes, and with, under, and subject to the several powers, provisoes, limitations and declarations hereinafter limited, expressed and declared of and concerning the same respectively; that is to say, (upon trust,) that they or the survivor of them, or the heirs, executors, administrators or assigns of such survivor, as long as they or he shall continue to receive the rents, issues and profits of my said two houses and lots, my tenements and hereditaments under the dispositions of this my Will, or either of them do see that the same are kept in all substantial and necessary repair, and also that the same may, if it shall be thought expedient, be kept insured from damage by fire; taking care, however, that the expense of such repairs or insurances fall respectively upon the person or persons beneficially interested in the same under the provisions of this my Will; and that in case of such insurance or insurances, and the happening of any such loss or damage, that the money to be received upon or by means of such insurance or insurances may be laid out in reinstating the same respectively ; and that they or he do retain and apply so much of the rents and profits aforesaid as shall be necessary in that behalf, and for the purposes aforesaid respectively, and subject and without prejudice to such, the aforesaid trusts upon trust—that out of so much of the said rents and profits of all my said messuages and tenements as shall remain unapplied to the purposes aforesaid, and of all the rest of my estate and effects hereinbefore devised and bequeathed, to take, appropriate, and apply so much thereof as shall be necessary and proper for and towards the suitable support and comfortable maintenance of my wife Sally, who unhappily is at present imbecile in mind and understanding, (for which reason it is I provide for her in this way, instead of settling upon her a fixed annuity for her natural life,) as long as she shall continue my widow: And if she shall marry again, then out of the rents and profits aforesaid, to pay to my said wife, or such person or persons as she shall in writing appoint, the sum of one hundred dollars in half yearly payments, on every tenth day of May and November in every year, and a proportionate part of such half yearly payments (if any) as shall be accruing, and not have actually accrued due, at the time of her decease. The first payment of the said yearly sum of one hundred dollars to commence and be made to her on the first of those days which shall happen after her marriage; but the same may be paid into the hands of my said wife, pr unto such person or persons as she shall appoint, exclusively of any such after taken husband, who is not to inter-meddle therewith, nor is the same or any part thereof to be subject in any manner to such husband’s control, debts, or engagements : And I further Will and declare that the receipts of my said wife, or of such person or persons as she shall appoint to receive the said annuity or the arrears thereof, shall, notwithstand. ing any such coverture, be good and effectual releases and discharges for the same, or so much thereof as shall be therein expressed to have been received; and further,- my executors 'may increase the sum, if in their discretion it shall appear to be necessary and proper: And I further declare my Will to be, that the before mentioned provision in behalf of my said wife shall be in lieu of her right of dower, and that if she shall insist upon her taking or enjoying her dower rights to the said premises herein-before mentioned to be devised by this my Will, then she shall take no benefit under this my Will: And I do further Will and direct that my said trustees, or the trustees or trustee for the time being, as long as they or he shall continue to receive the rents, issues and profits of my said messuages aPd. tenements as aforesaid, but subject to the provisions and trusts aforesaid, shall and do yearly and eyery year distribute and pay unto and amongst all and singular my children, that is to say, to my two sons James and Jacob, and to my daughter Hannah, all the rest, the residue and surplus of the aforesaid rents, issues and profits, after deducting thereout so much as shall be necessary to answer the aforesaid trusts, and all costs and charges, and a reasonable compensation to him or themselves (my said trustees) for his or their trouble and pains in and about the trusts created by this my Will, and the same to be equally divided amongst them, the said James, Jacob and Hannah, share and share alike during their lives; and after,the death of my said wife, then the whole, except what is as before excepted, shall in like manner be divided among my said children share and share alike and their heirs: and in case of the death of either of them without lawful issue, then his or her share shall go to the survivors or survivor of them in equal portions; but if such child or children shall die leaving such issue him or her surviving, that then such issue shall be entitled-to the share or portion of his or her or their parent: And I further Will and direct that the share or portion and all sums of money that my said dauglb ter Hannah shall be entitled to receive under the dispositions of this my Will maybe paid into her own hands, or unto such per-, son or persons as she shall in writing appoint, exclusively of any husband she may have, who is not to intermeddle therewith, rior is the same or any part thereof to be subject in any manner to such husband’s control, debts or engagements, and she may have and enjoy the same separate and apart from her husband, if any she shall have; and the receipts of my said daughter Hannah, or of such person or persons as she shall appoint to receive the same or any part thereof, shall, notwithstanding any such coverture, be good and effectual releases and discharges for the same, or so much thereof as shall be therein expressed to have been received: And I do hereby further Will and direct that, subject to the several trusts aforesaid, and without prejudice to them, my said trustees do and shall, from and after the death of all my said children, stand and be seized and possessed of all and singular my real estate aforesaid, houses and lots, messuages and tenements so devised to my said trustees as aforesaid, in trust for the benefit and to the use and uses of such heirs of my said children as shall be then living; that is to say, if they all shall leave issue, then the one equal third part thereof to the child or children of my son James, and his, her or their heirs and assigns for ever; another equal third part thereof to the child or children of my son Jacob, and his, her or their heirs and assigns for ever; and the other equal third part thereof to the child or children of my daughter Hannah, and his, her or their heirs and assigns for ever; and in case of the decease of either of my said children without lawful issue him or her surviving, then my said real estate shall go to the children and heirs of the other two, each branch to have a moiety or half part thereof; and in case only one of my said children shall leave such issue, then the whole shall go to such issue in manner aforesaid; and I hereby direct my trustees or trustee for- the time being, to execute and deliver conveyances of the legal estate to such person or persons as shall then be entitled to the same under this my Will; and I do hereby authorize and empower my said trustees, and the survivor of them, and the executors and administrators of such survivor, to demise or lease the whole or any part of the premises hereinbefore devised unto such person or persons, for such term or number of years not exceeding twenty-one years from the making thereof, as they or he shall deem proper or expedient, and most for the interest of those concerned, so as on every such lease so to be made there be reserved and made payable the best and most improved yearly rent or rents that can be gotten for the hereditaments and premises hereby devised: And my further Will is, that it shall be lawful for the said trustees or trustee for the time being, and whenever they or he shall judge it most for the improvement of the property and the interest of those who are beneficially interested therein, to apply so much of the rents, issues and profits of the said premises hereinbefore devised, as to them or him shall’seem expedient and proper, in or for the purposes of repairing or rebuilding any of the messuages or buildings upon the said lots, or in improving the same; and to this end he or they may mortgage both or either of the said lots, as the occasion shall require, in order to raise money for such rebuilding, repairs or improvements. And I do hereby make, ordain, constitute, and appoint the said Samuel F. Randolph, and my son James, executors and trustees of this my last Will and Testament, hereby revoking all former Wills by me at any time heretofore made, and do declare this to be my last Will and Testament. In witness whereof, I the said Jacob Thomas, have to this my last Will and Testament set my hand and seal this fifteenth day of December, in the year of our Lord one thousand eight hundred and eighteen. Jacob Thomas, [L.S.] Signed, sealed, published, and declared by the above named Jacob Thomas as and for his last Will and Testament, in the presence of us, who have subscribed our names as witnesses thereto in the presence of the said testator, and in the presence of each other. Joel Fitz Randolph, William L. Bent, Eliza F. Randolph.” The complaint alleged that the houses and lots, described in the Will as Nos. 46 and 48 Nassau Street, are now known as Nos. 86 and 88, that both lots were covered by a mortgage, made by Jacob Thomas in his lifetime, and that after his death this mortgage was foreclosed, and under a decree made on such foreclosure, No. 88 was sold, and the avails of the sale applied to the satisfaction of the mortgage debt, and that an unincumbered title to No. 86 then became vested in the trustee, Randolph, subject to the provisions and limitations in the Will. The truth of these allegations was assumed and not denied on the trial, and was admitted upon the argument of the appeal, at the General Term. The complaint further alleged that J. Thomas, the Testator, died on the 29th December, 1831, and left him surviving his widow Sally Thomas, his daughter Hannah Griffen the plaintiff, his son Jacob Thomas, his only children, and a grandchild, Sarah Ann Thomas, the daughter of his deceased son James. That Sarah Ann Thomas, after the death of the testator, married the defendant William Sands, and that on the 10th of March 1852 the widow of the testator died, thus leaving the plaintiff and Sarah Ann Sands the only persons interested in the rents and profits of the property, and that Mrs. Sands died, without issue, March 2d, 1853. The truth of these allegations and dates was conceded on the trial. On the trial the plaintiff’s counsel next read in evidence the lease mentioned in the complaint of the house and lot No. 86 Nassau St. from the defendant Byrns, as a trustee, under the will of Thomas, to the defendant Hodges, his executors’ and assigns. The lease was for the term of 21 years from the 1st of May 1850, at an annual rent of $800, payable quarterly, and contained a provision that it might be continued for two further terms of 21 years each, at the option of Hodges, his executors, &c. It was dated, and purported to have been executed on the 20th December, 1849, acknowledged December 24th, 1850, and recorded December 29th, in the same year. The counsel also read in evidence, the lease of the premises mentioned in the complaint from Hodges to Ford: it was for the term of five years, from the 1st of May 1856, at the yearly rent' of $800, and was dated and executed on the 19th June 1854.
    The appointment of Wyckoff as a trustee under the will in the place of Jas. T. Griffen deceased, was proved by the production of an order of this court, making the appointment, dated July 28th 1854.
    The application of the plaintiff to Wyckoff to become a plaintiff in this action, and his refusal, were also proved. It was conceded on the trial that the several trustees mentioned in the complaint, were successively appointed, and became vested with the powers, and subject to the obligations of trustees under the will at the times, and in the manner alleged in the complaint.
    The complaint alleged, that Randolph the trustee, mentioned in the will, was duly discharged as such by an order of the Court of Chancery, on the 28th May 1835: that the defendant Byrns, by an order of the same Court, was duly appointed a trustee in Randolph’s place. That Byrns, by an order of this court, duly made on the 14th November 1851, was removed from office as such trustee, and Jam.es T. Griffen appointed trustee in his stead, and that on the 29th of June 1854, James T. Griffen died. Evidence was then given on the part of the plaintiff to show that at the time the lease was made by Byrns to Hodges, the fair annual rent of the property was from $1,800 to $2,000.
    These are all the material facts proved at the trial on the part of the plaintiff.
    On the part of the defendant, Ford, a deed from Wm. Sands and Sarah Ann, his wife, to H. Byrns, dated April 22d, 1852, of an undivided half of the premises No. 86 Nassau Street—also a deed from Byrns and wife, dated Dec. 19, 1854, to the defendant Hodges, of the same undivided half, were produced and read in evidence. No evidence was given or offered on the part of this defendant to contradict that on the part of the plaintiff, as to the fair annual rent of the premises when the lease to Hodges was made.
    The following are the material facts and conclusions of law found by the Court at Special Term, and embodied in the final judgment.
    The Court found and adjudged that the will and codicil of Jacob Thomas, and the trusts therein contained, are good and valid, and that the house and lot, No. 86 Nassau Street, became vested in Samuel T. Randolph, and his several successors, named in the complaint, successively, as trustees of the property under the will, with power to. execute the trusts thereof. The Court further found and adjudged, that Sarah Ann Sands never had any conveyable interest in the premises, and that the deed from her and her husband, of the date of the 22d of April, 1852, to the defendant Byrns, of one undivided half of the premises, and also the deed dated 19th December, 1854, from Byrns and wife to the defendant, Hodges, of the same undivided half, were and are inoperative and void, and that no title passed thereby to Byrns or Hodges; and further, that the plaintiff is the only person entitled to the income of the property, and that she is entitled to have the same leased by the trustees thereof for the time being, according to the terms of the will of Jacob Thomas, and to receive the nett income thereof. And, further, that the lease of the premises of the date of the 20th of December, 1849, executed by the defendant Burns, as trustee to the defendant Hodges, was not made for the benefit of those interested, nor for the best rent that could have been obtained for the property, and was made without authority, and in violation of the trusts of the will, and of the obligations of Byrns as such trustee, and of the rights of those interested in the property, and therefore was and is wholly inoperative and void, and that no right or title to the premises passed by means thereof to Hodges, and that the lease of the premises of the date of June 19, 1854, from Hodges to the defendant Ford, was and is wholly inoperative and void, and that by means thereof no right, title, or interest, in the premises, passed to the defendant Ford. The Court also found that the trustee, the defendant Wyckoff, neglected and refused to adopt any measures, or take any proceedings, to set aside the said lease, though requested by the plaintiff so to do, before the commencement of this action.
    The judgment then proceeded to grant substantially the relief prayed for in the complaint. To each finding of facts and conclusion of law in the judgment so rendered, the Counsel for the defendant Ford severally, and duly excepted.

      Albert Matthews, for the appellant, Ford.
    The demurrer was well taken, and the order overruling it should be reversed. Since the code a cestui que trust has no estate, or interest, legal or equitable, in the trust property, the whole being vested in the trustee, who is, therefore, alone competent to maintain any action relative to the trust. If he refuse to bring an action that ought to be brought, a Court of Equity may, by a proper order, compel him, or may remove him (1 R. S. 730, § 70), and appoint another who will act (L'Amoureux v. Van Rensselaer, 1 Barb. Ch. R 34; 1 R. S. 729, § 70). Next, as to the merits, we insist that if the will is valid, the lease from Byrns to Hodges was not so far beyond the discretionary powers of the trustee, as in the absence of fraud to render it void—no fraud was proved or found by the Court, and the lease was therefore valid, at least in equity, until the expiration of the first term of twenty-one years from its commencement.
    But we insist that the will of Jacob Thomas is inoperative and void. The devise in trust embraces all his property, and is a limitation suspending the power of alienation beyond the period allowed by law, that is, the lives of two persons in being. The devise suspends the power of alienation during the lives of four persons living at the death of the testator, viz. his widow, and his two children, and his granddaughter; for the interest of each of these was, from its nature, unalienable, nor could they give any authority to the trustees to convey. (Van Eps v. Van Eps, 9 Paige, 237; L'Amoureux v. Van Rensselaer, 1 Bar. Ch. R. 34;) and even if the devise be construed as a “power in trust,” the objection is equally fatal (Hawley v. James, 16 Wend. 61; Lang v. Ropke, 5 Sand. 363.)
    The will being void, the lease from Byrns to Hodges was void on its face, and Sarah Ann Sands became the owner in fee of an undivided half of the premises in question, and Byrns and Hodges, being successively grantees of this one half, are estopped as against a person claiming under them, from invalidating the lease. (Jackson v. Bull, 1 John. Cases 81; Same v. Murray, 12 John. 201; Same v. Stearns, 13 John. 316 ; Crane v. Van Horne, 1 Paige, 455.) The lease, as made by a tenant in common, being valid in respect to an undivided half of the premises, this action fails in its “ entire scope,” and the complaint should be dismissed. At any rate, the defendant Ford, being a bond fide purchaser, ought not to have been charged with costs—and so far at least the judgment at the Special Term is erroneous.

      Asa Child, for the plaintiff, respondent.
    The judgment at Special Term was, in all respects, correct, and should be affirmed with costs. The will of the testator is valid in all its provisions within the meaning of the R. S., by which we admit that its construction must be governed. The devise in trust to his executors suspended the power of alienation only during the lives of his children. The trustees are to have and hold the property “ during the natural lives of my children,” and it is afterwards expressly provided that “ upon the death of all the children,” the trustees should convey to their issue then living. It was therefore the manifest intention of the testator, that, upon the death of all his children, the estate of the trustees should wholly cease. Two only of the children, named in the will were living when it took effect, the plaintiff and her brother Jacob, and, consequently, it was only during their lives that the power of alienation was suspended. The provision made for the widow created no suspense of alienation during her life. Its only effect was to create a charge giving her a hen upon the property, but this was an interest which she might have extinguished at any time by a release or grant. Upon the death of the children, had she survived them, under the provisions of the will, properly understood, an absolute fee might have been conveyed to a purchaser by her uniting in the grant.
    The will being valid, it follows, that the lease from the trustee, Byrns, to Hodges, as contravening the provisions of the will, and violating his trust, was void as soon as it was executed; and as Hodges took no title under it, he could give none to Ford; the lease from him to Ford was therefore necessarily void. The lease to Hodges is, on its face, a lease in reversion, or in futuro within the meaning of those terms, and it is settled law, that a power to lease for a certain term of years without expressing in possession, and not in reversion, authorizes leases in possession only; and consequently a lease purporting to be an execution of the power is wholly void, when the term of years which it grants is to commence in possession upon a future day.— Sinclair v. Jackson (8 Cowen, 543), Lady Sussex v. Wroth (Cro. Eliz. 5), Shecomb v. Hawkins (Cro. James, 318), Allen v. Calvert, 2 East. 376, Willis on Trustees 141, Sugdenon Powers, 368,370. In this lease the term granted is not to commence in possession until the 1st of May following the date of the lease, and the lease moreover gives an option to the lessee to extend the term to 63 years, a provision plainly and wholly unauthorized.
    There is another ground upon which it is equally certain that the lease must be declared void. The will requires that the trustees, in making a lease, shall reserve the best rent that can be obtained; and Byrnes, therefore, on making the lease in question, in which the rent reserved is only $800, exceeded his power, and violated his duty. It was proved upon the trial, that a fair rent would have been $2,000. The transaction was palpably fraudulent.
    The only question that remains, is. whether this action is to be defeated upon, the technical ground that it ought to 'have been brought in the name of the trustee; and we insist that the objection is not merely technical, but groundless. The plaintiff, being entitled to the rents, is the sole party injured by the fraudulent lease that she requires to be given up and cancelled. To deny her title to redress, would be to violate the plainest rules of justice. It is true, the redress might have been obtained by an action in the name of her trustee; but the cases to which I shall refer are conclusive to show that, when a trustee refuses to act, the action may be brought by the cestui que trust, and the trustee be made a defendant; and such is the present action. (3 Maddock, Ch. R. 375; Jacob’s R. 324; 4 Russell, 272; 1 Ball & Beatty, 181; 2 Brown, Ch. R. 225; Skinner, 319; 3 Swanst. 1; 2 John. Ch. 238,1 Paige 20.)
   By the Court. Duer, J.

An attentive examination of the interesting questions which this case involves, has compelled our assent to nearly every proposition for which the learned Counsel for the plaintiff contended, and we are therefore under the necessity of assenting to bis conclusion, that the plaintiff was fully entitled to the judgment she has obtained.

The first question relates to the validity of the will of her father, from which she derives her title, and who, it is admitted, died seized of the house and lot in controversy.

We strongly incline to think that this is a question which the defendant, Ford, was not at liberty to raise. In his answer and upon the trial, as well as upon the argument before us, he has insisted upon the validity of the lease to Hodges, as a proper execution of the power to lease given by the will. It is from the will, therefore, that he derives the title he has asserted, and it may well be doubted whether he was not estopped from denying the legality either of its execution or its provisions. But, as this objection was not taken by the counsel for the plaintiff, upon the hearing, we do not think we should be justified in now saying that, had it been raised, it would have been allowed to prevail. It is our invariable rule, never to decide a cause upon a point not argued by counsel, unless it has been submitted without argument and without points. We proceed, then, to the main question, whether the trust created by the will suspended the power of alienation, as to the property it embraced, beyond the period limited by the statute. And if we are to look merely at the -terms of the will, it cannot be denied, that even upon the plaintiff’s construction, the devise in trust was wholly void. By its terms, it suspended the power of alienation during the Eves of those children whom it named, and had all these been Eving when the testator died, there would have been a clear suspension of the power of alienation beyond the statutory period. Two, only, of the children, however, were then living; and in applying the statutory rule to the provisions of a will, it is certain, that Eves in being at the death of the testator, are alone to be considered. (Lang v. Ropke, 5 Sand. S. C. R. 375.)

The question, then, is, whether the devise to the trustees is so framed as to involve a suspense of the power of aEenation, for any period beyond the Eves of the two children who survived the testator, the plaintiff and her brother; for, if it was the intention of the testator, as coHected from his whole wEl, that the estate of the trustees should then cease, and the property become alienable, the objection that the trust creates what in judgment of law is a perpetuity, is plainly groundless; and no other objection to its legality has been, nor, as we think, can be stated.

We are far from saying, although the conclusion at which we have" arrived is favorable to the plaintiff, that this question is free from difficulty; for it cannot be denied that the provisions of the will are somewhat perplexed, and involve a seeming contradiction. The devise to the trustees embraces all the property, real and personal, of the testator, and especially his two houses and lots in Nassau street; and the trustees are to have and hold the same, during the natural Eves of his children, upon trusts that, rejecting superfluous words, may be stated as follows:—

1. As to the two houses and lots: that the trustees, as long as they shall continue to receive the rents and profits thereof, shall see that the same are kept in necessary repair, and, if thought expedient, be insured against damage by fire, the expenses of such repairs and insurance to be borne by the persons beneficially interested under the provisions of his will.

2. After defraying these expenses, to apply out of the rents and profits not only of the said tenements, but of his whole estate, so much as may be necessary towards the proper support and maintenance of his wife Sally.

3. In case of the marriage of Ms wife, to pay to her out of the rents and profits aforesaid, in half-yearly payments, an annuity of one hundred dollars. This provision for his wife to be in lieu of her dower, and if she shall insist upon her dower, then she is to take no benefit under his will.

4. To distribute, and pay yearly, the rest and residue of the aforesaid rents and profits so long as the trustees continue to receive those of the two houses and lots, to his three children, naming them, share and share alike; in case of the death of either, without issue, Ms or her share to go to the survivors, but if either shall die leaving issue, the children to take the share of the parent so dying.

5. After the death of his wife, to pay the whole of the aforesaid rents and profits, deducting the expenses, costs, and charges before mentioned, to his children and their heirs, share and share alike.

6. The will then directs, after some special provisions relative to the payment of the share of his daughter, the plaintiff; that the trustees, from and after the death of all the children, shall stand seized and possessed of all his real estate, including the two houses and lots¡ in trust for the benefit and to the use and uses of such heirs of his children as shall then be living, and shall execute and deliver conveyances of the said real estate to the persons then entitled under the will.

Although in this analysis of the trusts of the will, the provisions are given in a very condensed form, we are satisfied that none have been omitted that have the slightest bearing upon the question to be decided. We proceed then to the observations, that a full exposition of the meaning and legal effect of the trusts of the will, as we have stated them, seem to require.

If the question stood alone upon the words in the habendum clause, “ to have and hold the same during the natural lives of my children,” it would be wholly free from doubt, since it cannot be denied that these words limit the duration of the estate of the trustees to that of the lives of the two children living at the death of the testator. To language so explicit, no other construction can be- given. It is this construction, therefore, that we are bound to adopt, unless we shall find that it is plainly overruled by subsequent and inconsistent provisions in the will.

The first trust of the will following the habendum clause, as we have seen, is confined to the rents, issues, and profits of the two houses and lots, and is to last no longer than the trustees shall continue to receive them, and these last words seem to imply that the estate of the trustees in the houses and lots was meant to terminate before the trust embracing the residue of the property devised: an inference which is strengthened by the repetition of the words in a subsequent clause.

The second trust relates to the provision made for the support and maintenance of the wife of the testator. Whether this provision, from its nature, and by its necessary legal effect, operated to suspend the power of alienation during the life of the wife, as well as during the fives of the children, and in relation to all the property, including the two houses and lots that the devise in trust embraces, is a question that we shall hereafter and separately consider. It is enough now to say, that there are no express words, inconsistent with those in the habendum, by which the estate of the trustees is made to cease upon the death of the children. There are no words by which the trust estate is made to continue during the fife of the wife, should she survive the children.

The next trust provides a fixed annuity for the widow, in the event of her marriage; and, by a subsequent clause, the whole provision for her that the will makes, is made to depend upon her election to take or renounce her dower. That she elected to take the provision in the will, in lieu of her dower, was assumed and conceded upon the hearing before us. Indeed, the argument as to the effect of this provision in the will, rested entirely upon this concession. Had she taken her dower, the provision in the will would have been rendered void, and no question as to its effect could have arisen.

The fourth trust merely directs the payment of the surplus rents and profits to the three children during their fives, share and share alike, and requires no special observation, except that this payment is to be made only while the trustees should continue to receive the rents and profits of the two houses and lots.

The trust that follows, provides, that after the death of the wife, the whole rents and profits, deducting expenses and charges, should be paid to the children; and it was upon the words, “after the death of my wife,” that the able counsel for the appellant laid much of the stress of his argument, contending that they necessarily implied that the trust estate, and the consequent suspense of alienation, were meant to continue during the life of the widow—and such, at first view, might seem to be their import. But a brief reflection sufficed to convince us that such is neither the necessary import nor the reasonable construction of those important words. The death of the wife which is referred to, is her death during the lifetime of the children, and is therefore perfectly consistent with the supposition that the estate of the trustees was intended to cease upon the death of all the children; that it was intended to cease, notwithstanding the wife might survive them; and it is plain that upon this construction the suspense of the power of alienation is confined to the lives of the two children, living at the death of the testator, just as certainly as if they alone had been named in the will as the persons entitled to receive the. whole rents and profits during their lives. Had the testator, by an agreement in his lifetime, charged the rents and profits of his estate with the payment of an annuity, during the lives of his children, living at his death, we apprehend that it would never have been contended that the life of the annuitant was to be taken into consideration in determining whether the suspense of the power of alienation exceeded the statutory limits. If in the case before us, no payments were to be made by the trustees to the widow, after the death of the children, it is in principle exactly the same as that which we have supposed. Nor is this all; the construction that we have shown that the words used plainly admit, is also that which, as in itself the most reasonable, we are - bound to adopt. It is only by its adoption that the provisions of the will can be rendered consistent, and a palpable contradiction be avoided; and to reject it would be to deny the authority of one of the safest and soundest rules of interpretation that in the construction of written instruments, Courts of justice have hitherto held themselves bound to follow. The construction of the appellant would strike the words “ during the natural lives of my children” from the habendum clause, and would rob of their meaning the provisions next to be referred to, and which comprise the last duties that the trustees are required to perform. These provisions declare that the trustees, from and after the death of all the testator’s children, shall stand seized and possessed of all the real estate, houses and lots devised to them in trust, for the benefit and to the use or uses of such heirs of his children as shall then be living; and shall execute and deliver conveyances of the real estate to such person or persons as shall then be entitled under the will. We do not think that it is possible to state a reasonable doubt as to the meaning and legal effect of these provisions. The trust which they declare, is not active but passive, and the operation of the words, “for the' benefit, and to the use or uses,” is not at all affected by the subsequent direction to' convey. The direction, if not unmeaning, was wholly superfluous. It is true that at common law, a direction to convey was deemed an active trust, so that until executed the legal estate remained in the trustees, (Clarke v. Davenport, ante, p. 95,) but as the Rev. Stat. have abolished all active trusts except those which they expressly authorize, it is certain that the rule of the common law can no longer be followed. The use which the previous words, “for the benefit,” &c., declare, is a use which had the wife survived the children, the statute would have executed instantly upon the death of the children, by vesting in their heirs the whole estate, legal' and equitable, (1 R. S., pp. 727, 728, § 47, 49 ;) nor would any conveyance, or demand of a conveyance, have been necessary to have enabled them to recover the possession, had the trustees refused to surrender it. It must have been held that the words of the will, interpreted by those of the statute, gave them an immediate and perfect title. It follows that unless we expunge from the will the provisions we are considering, we are bound to say that it was the certain intention of the testator, that upon the death of all his children the trust created by the will should, as to his real estate, wholly cease and determine. We add, that the same construction must have been given to these provisions, even had the will in a prior clause in terms declared that the trust estate should continue during the life of the wife, for the rule appears to be settled that where there are two repugnant clauses in a - will, it is the intention which the last declares that the Court is bound to execute.

The result of this examination of the will is, that it contains no clause or expressions from which it can be fairly deduced that the testator intended that the trust estate should continue during the life of his wife, but that, on the contrary, it appears to be certain that, in respect to his real estate, he intended it should cease wholly and absolutely upon the death of his children, whether his wife should or should not survive them. Hence, if the suspense of the power of alienation was limited by the duration of the estate of the trustees, it lasted no longer than the lives of the two children living at the death of the testator, and had therefore no effect on the validity of the will.

It is said, however, that a suspense of the power of alienation, during the life of the wife, was necessarily created by the nature of the provision made for her support, and which it was the manifest intention of the testator that she should continue to receive, in one or other of its alternative forms, during her life. As this provision was payable out of the rents and profits of the whole estate, real as well as personal, it is asserted, that its necessary effect was to suspend the power of alienation, in respect to the whole and every part of the estate, so long as the obligation of its payment remained in force, and that, to secure its payment, the trust ought therefore to be construed as remaining in force for the same period—namely, the life of the wife.

The argument is specious, but it is not difficult to show that it rests upon premises erroneously assumed. It cannot be denied that the provision for the wife was meant by the testator to be a provision for her life: such is the necessary interpretation of the language he employs; nor do we at all doubt, that, had the wife survived the children, the obligation for the payment of the pro-, vision would have remained in force. But as we must hold that the estate of the trustee was intended to cease upon the death of the children, the provision for the wife, had she survived the children, would no longer have been the subject of a trust, since the only trust in relation to it.which the will creates, would then have ceased; but it would have been effectual simply as a charge upon the rents and profits of the real estate, to which the heirs of the children would then have been entitled. Whether the charge would have operated as a suspense of alienation, is a question that will hereafter be considered.

It was assumed by the learned counsel for the appellant, that, as the provision for the widow was payable out of rents and profits, the trust for its payment was referable, and could only be referred to the 3d sub. in § 55, in the Statute of Uses and Trusts, which sanctions an express trust “for receiving the rents and profits of lands, and applying them to the use of any person during the life of such person,” and that, as the beneficial interest of the widow was inalienable under § 63, and any conveyance of the trustees would have been void under § 65—it was a necessary consequence that the power of alienation was wholly suspended, so long as the provision continued to be payable.

The error of this argument consists in its premises, for, be they even admitted to be true, the truth of the conclusion could not be disputed—that a trust, under sub. 3 in § 55, suspends the power of alienation is settled and familiar law. But if the trust for the widow was not a trust of this class and description, there is no ground whatever for the assertion, that it suspended at all the power of alienation; and that it is not such a trust, we consider to be settled by the decision of the Court of Errors, in Hawley v. James, as interpreted and followed by this Court in Lang v.Ropke. The provision for the widow, although limited to her support and maintenance; was in its nature an annuity, and its amount as such; that is, the sum to be annually paid might have been fixed by a Court of Equity, (2 Hare, 607; 10 Simons, 293.) An annuity, when created by a will, is a legacy, and when payable out of rents and profits, a charge upon lands, and it is therefore to sub. 2 in § 55 that the trust, for its satisfaction, must be referred. Hence, in this case, had the three children named in the will survived the testator, although the trust for them, as creating an undue suspense of alienation, would have been clearly void, the provision for the wife, as free from the objection, would have been sustained as valid. Such, under exactly the like circumstances, was the judgment of the Court in Hawley v. James, and it is only to be explained upon the ground, that a trust for the payment of an annuity out of rents and profits, although it may seem to fall within the words, is not a trust for the reception and application of rents and profits within the meaning of the statute. The interest of a person for whom a trust is created, under the 2d sub. of § 55, is not made inalienable by any provision in the statute. Hence, the wife in this case had an unrestricted power of disposition. She might have extinguished the provision made for her by a release, or have accepted a sum in gross in its satisfaction. It created, therefore, no suspense of alienation, even during the lives of the children and the continuance of the trust.

But even were a different construction to be given to the statute,—the construction for which the appellant contends—it is certain that the expiration of the trust must have been held to put an end to any suspense of alienation that its terms created Had the wife survived the children, the provision for her sup port would have been a charge upon the real estate in the possession of the heirs of the children, as owners; and it would be an extravagant as well as novel doctrine that a charge upon lands in the possession of the owner, creates the relation of trustee and cestui que trust, so that where the charge is upon rents and profits, neither the owner can sell the lands nor the person entitled transfer or assign the charge. A charge upon lands, in the possession of the owner, is simply a debt, for the payment of which the lands are a security.

It is certain that the common law in such a case imposed no restriction upon the transfer either of the lands or of the debt, and to our minds it is equally certain that none has been imposed by the statute. It is needless, however, to pursue the discussion, as the point has been expressly decided by this Court, and this decision, unless demonstrated to be wrong, we are bound to follow. (McGowan v. McGowan, 2 Duer 57.)

Hitherto we have taken no notice of the allegation that there was a suspense of alienation during the life of the granddaughter of the testator, Sarah Ann Sands, as well as during the lives of the children and widow. Although this position is taken in the printed- points of the appellant’s counsel, according to our recollection he laid very little if any stress upon it in his argument, probably from the conviction that it was open to a short and conclusive reply. It is very doubtful whether the granddaughter, under the provisions of the will, became entitled, upon the death of the testator, to any share of the rents and profits, but, admit-; ting that, according to the intention of the testator, she then became entitled to the share that would have belonged to her father, had he survived the testator, and that her interest, so long as it continued, was just as inalienable as that of the children, still it is manifest and certain that her power of alienation was suspended, not during her life, but only during the lives of the children, since, had she survived them, she would have been entitled as heir to an absolute fee in the real estate, from which the rents and profits in which she had shared had arisen. Her power of disposition would then have been unlimited.

Our conclusion is that the will of the testator created no suspense of the power of alienation beyond the lives of the two children living at his death, and consequently that the devise to the trustees was, in all respects, valid.

The will being valid, it follows, and it is not denied, that the deed from Sarah Ann Sands, and her husband, to the defendant Byrns of an undivided half of the house and lot in question was wholly void, since at the time of its execution and delivery, she had no interest whatever in the premises that she was competent to convey, nor did she acquire any during her life. The only question, therefore, that remains upon the merits is, whether the lease granted by the defendant Byrns as trustee to the defendant Hodges, can be upheld as a proper execution of the authority given to the trustees by the will. The lease is certainly void if it appears upon its face, or was proved upon the trial, that the trustee in malting it exceeded his powers; and it is scarcely necessary to add that if the lease from the trustee to Hodges was void, that from Hodges to the appellant must be equally so, unless the alleged absence of fraud on his part is alone sufficient to render it valid. The authority given by the will to the trustees is to make leases of the premises devised, for a term of years not exceeding twenty-one years from the making thereof as they may deem expedient, so that in every lease so made there shall be reserved “ the best and most improved year’s rent that can be gotten.” And the allegations on the part of the plaintiff are, that the trustee, in making the lease in question, exceeded his authority, and violated his trust, by making the term of twenty-one years for which it is granted, commence in possession on a future day, and by reserving a rent for less than it appears from the evidence on the trial and the Judge at Special Term has found could have been obtained. And if either of these objeetions shall appear to be well taken, it will be our duty to declare that the lease was void as soon as it was executed—void in its creation.

The lease in question purports to have been executed and delivered on the 20th of December, 1849—and grants and demises to the party of the second part, the defendant Hodges, the house and lot now in question, to have and to hold the same from the 1st of May, 1850, for and during the fill end and term of twenty-one years, thence next ensuing. The lease by its terms was intended to vest, and if valid would have vested an immediate interest, termed in law an interesse termini, in the lessee (1 Inst. 4, 6 b., 2 Crabb’s Law of Real Property, §§ 1269, 1300.) But the term which it grants by express terms was, not to begin to run, in other words, was not to commence in possession until a future day. Hence, if the words in the power to lease, as granted*by the will, “from the making thereof,” mean, as they unquestionably do, the making of the lease, and if they necessarily import that the term to be granted must be computed from the execution and delivery of the lease; and if the law is settled, that when a power to lease is confined to leases in possession, a lease to commence in possession on a future day is wholly void; the objection, that the lease in question was void in its creation, and void upon its face, admits of no reply. The cases, however, that were cited by the counsel for the plaintiff, are alone conclusive to show that the necessary import of the words “from the making thereof,” is such as has been stated (Vide also Crabb’s Real Property, § 1301, 1316, 1359) and that when a power to lease is confined to leases in possession, and not in reversion, a lease to commence in possession on a future day, is wholly void. To the cases cited by the counsel, many might readily be added, but I shall content myself with referring to the leading and celebrated case of Pugh v. The Duke of Leeds (Cowper 714) in which all the prior authorities were carefully reviewed, and the whole subject elaborately discussed.

In this case, the power to lease was confined to leases “ in possession, and not in reversion;” and the lease in question was for the term of twenty-one years, “ from the day of its date.” In Maths v. Ash, 2 Salkeld 413, and perhaps in other cases, it had been held, that a lease to commence from its date included the day of its date, but when it is to commence in possession from the day of its date, the day is excluded—and in Pugh v. Leeds, it was admitted by the counsel, and by the judges, that if this construction must be followed the lease in question could not be sustained, since thus construed, it was a lease to commence on a day subsequent to its execution, and, therefore, void, as not warranted by the power. The only question, therefore, was, whether the court would suffer its judgment to be controlled by the earlier cases, or reject the refined and in truth verbal distinction upon which they proceeded. As might be expected, Lord Mansfield and his brethren rejected the distinction as unreasonable, and his Lordship said, That the word “ from” not only in vulgar use, but in strict propriety of language, might be used either in an inclusive or exclusive sense—that in all cases it was to be construed according to the intention of the parties; and that in the case before them it was necessarily used and understood by the parties in a sense that would render their deed effectual. The lease was held to be valid, as not contravening the terms of the power. I have cited this case not merely as proving the existence of the rule that a lease in futuro, when a lease in possession only is authorized, is void, but as illustrating the strictness of its application, for if in Pugh v. Leeds, the language of the lease had been such as necessarily to exclude the day of its execution, it is certain that it would have been held to be void, although to commence in possession on the following day; nor is the rule, although, perhaps, too rigidly applied, to be condemned as unreasonable and arbitrary. On the contrary, it has always been regarded, and justly regarded, as necessary to the protection of those who haye a present or future interest in the due execution of a leasing power; and hence, Chancellor Kent observes, “ that where a power to lease is uncircumscribed it is liable to abuse, and to be carried, even with upright intentions, to an extent prejudicial to the interest of the cestui gue trusts, or parties in remainder (4. Kent. Com. pp. 106,107).

The necessary conclusion, from the observations that have been made, and the authorities that have been cited, is, that the lease to Hodges, under which the appellant claims, was void in its creation and upon its face, was unauthorized, and, in effect, forbidden by the terms of the will. As Hodges had no title at all, he could pass none to the appellant, even if the latter is to be regarded as a bona fide purchaser. He knew that the lease to Hodges was from the trustee under the will. He was bound to inquire into the provisions of the will, and was therefore bound to know that the trustee, in making the lease, had exceeded his powers and violated his duty. It is true that a Court of Equity, in many cases, will aid the defective execution of a power in favor of a bona fide purchaser; but assuredly no Court of Equity could grant this aid by reforming an instrument in execution of a power, in a case like the present. No Court of Equity could strike out the 20th of December, 1849, the true date of the execution of the lease in question, and substitute the 1st of May, 1850, so as to make the lease valid upon its face, as a lease in possession. Equity aids the defective execution of a power, in order to carry into effect the true intention of the parties—the intention which, in proper form, they have failed to express; but Equity, under pretence of reforming, never alters an instrument in execution of a power, so as to make it assert a falsehood, by striking out the intention which its words plainly express, and substituting another that they were never meant to convey. (Sugden on Powers, 341-421.)

There is another ground upon which the lease to Hodges must be held to be void, and must have been so pronounced, even had it been valid on its face, by making the term of years which it grants commence in possession from the date, of its execution ; the lease was, in effect, the grant of a reversion, and was therefore necessarily to commence in possession upon a future day. It appears from the evidence that at the time of the execution of this lease, there was a valid outstanding lease of the premises, which was not to expire until the first of May ensuing. The existence of this lease was a bar to an immediate entry by Hodges. He could not have taken possession until the first of May, and his lease, if operative at all, could have operated only as the grant of a reversion—an effect which, as we have seen, the terms of the will, and the law applicable to those terms, forbid us to give it,

Another objection was stated to the validity of the lease in question, which we think cannot be sustained. It contains a clause declaring that it may be continued for two further terms of 21 years each, upon the same terms, at the option of the lessee ; thus placing it in his power to convert the lease into the grant of a term of 63, instead of 21 years. But, although this clause, as exceeding the authority of the trustee, was unquestionably void, it does not follow, nor can we say, that it rendered void the prior demise for 21 years. It is an established doctrine in England, that, where a lease under a power is granted for a longer term than is authorized by the power, although it is void at law, it is good in equity for a term of years corresponding with the power, and is void only for the excess. (Sugden on Powers, 545; 4 Kent. Com. p. 107, note (d), and cases there cited.) According to this doctrine, had the lease in question been granted, even for an absolute, instead of an optional term of 63 years, we could not for that reason have declared it to be void, but, as a Court of Equity, must have sustained its validity as a term for 21 years, by cutting off the excess.

We proceed to the next main objection to the validity of the lease, to which we are also of opinion that no satisfactory answer has been given, namely, that the rent reserved in the lease, was not the best which it was the duty of the trustee to obtain, but was far less than, it was proved upon the trial, he could have obtained. Upon this question, a very few remarks will suffice to explain our views. It was proved upon the trial, by the witnesses for the plaintiff, and their testimony was uncontradicted, that, at the time of the execution of the lease in question, a rent of more than double that reserved in the lease could with certainty have been obtained. Upon this evidence, it was found by the judge at special term that such substantially was the fact; and this finding we must hold to be conclusive. As to the facts, therefore, upon which the question depends, there is, in truth, no doubt, nor can we perceive that any has been raised in respect to the law. The counsel for the appellant was certainly mistaken in supposing, that, where the duty of reserving the best rent that he could obtain is imposed upon the trustee of a power, nothing more than good faith in the discharge of the duty is required of him; so that, unless fraud, which is never to be presumed, is actually proved, a lease granted by him is to be sustained as valid, however inadequate the rent reserved, and however clear the proof that a higher rent might readily have been obtained.. We think, on the contrary, that the duly thus imposed upon a trustee, as plainly requires the exercise of reasonable diligence in its discharge as that of good faith; so that when it clearly appears that the rent reserved in a lease granted by him was plainly inadequate, when the lease was executed, and that a higher, in the exercise of due diligence, could have been obtained, the neglect of the trustee may be justly regarded as a breach of his duty and of his trust, sufficient to invalidate his act. In the case before us, we think that the proof is conclusive to show that a rent largely exceeding that reserved in the leasé, with reasonable diligence, might have been obtained, and that the gross negligence of the trustee, and his manifest disregard of the provisions of the will, in not obtaining a more adequate rent, are sufficient grounds, even if we reject the imputation of fraud, for adjudging the lease in question to have been void as soon as it was executed.

• We have now fully considered the case upon its merits, and it is only a technical objection to the maintenance of the action in its present form, that remains to be noticed. The objection is, that the present trustee, Wyckoff, was alone competent to bring an action for setting aside the leases in question, and, it is contended that, upon the sole ground that he is not the plaintiff, if all other objections are overruled, the judgment appealed from should be reversed, and the complaint be dismissed.

It was not denied by the counsel for the appellant that it has long been an established rule.in Chancery, as was abundantly proved by the cases cited for the plaintiff, that when a trustee refuses to commence an action, that the interests of the cestui que trust require should be brought, the latter, upon the ground of that refusal, may commence and prosecute the action in his own name, making the trustee a party defendant; but it was insisted by the counsel that the Rev. Stat. have abolished this rule, since, by vesting in every case of an express trust, the whole estate, legal and equitable, in the trustee, they have made him alone competent to bring an action for its recovery or protection (1 R. S. p. 729, § 60); but it seems to have escaped entirely the attention of the counsel, that the words in the section of the R. S., to which, he referred us, which vest the whole estate, in law and in equity, in the trustees, are followed by the words, “subject only to the execution of the trust,” and that the same section, for the purpose of removing all doubt as to the mode of compelling the execution of the trust, also declares that, although the persons for whose benefit the trust is created, take no estate or interest in the lands, they “ may enforce the performance of the trust in equity which can only mean “ enforce its performance” by a suit in their own names against the trustee. The present action, in our opinion, is precisely of this character, for its sole object so far as relief is sought against the trustee, is “ to enforce the performance of his trust,” by requiring him to make a new and proper lease, and it is brought by a person for whose benefit'the trust was created. When it is brought to the knowledge of a trustee having a power to lease, that a lease by a former trustee, in which a very insufficient rent is reserved, is void upon its face, it is his duty, in the faithful discharge of his trust, disregarding the existence of the former lease, to make a new lease, in which a full and sufficient rent shall be reserved; and to enable him to do this, it is not necessary that the former lease, if void in law, should be set aside,—the new lease, if a valid execution of the power, displaces and extinguishes the former, and takes immediate effect (Miller v. Mainwaring, Cro. Car. 397, Crabb’s Law of Real Property, § 1,300). In this case the relief sought by the complaint is, that the trustee may be directed to make a new lease in conformity to the provisions of the will, and this direction is found in the judgment. The complaint therefore asks that the trustee may be compelled to perform his trust, and the judgment decrees its performance, at the suit of a person for whose benefit the trust was created. We cannot doubt that the suit was properly brought, and the proper judgment rendered.

To conclude, our decision is, that the finding of facts and the conclusions of law in the judgment appealed from, are in all respects correct, and the relief granted exactly that which the facts and the law of the case entitled the plaintiff to demand.

The judgment must therefore be affirmed with costs.

       In. 4 Kent’s Commentaries there is a valuable note and collection of cases on the general question, whether in computing time from an act or event the day is to be included or excluded, 4 Kent. Com. p. 95, note (b.)—Reporter.


author: By the Court. Bosworth, J.

text:
    Carrington & Dougherty v. The Commercial Fire and Marine Insurance Company of Jersey City.
    The American Mutual Insurance Company of Amsterdam, having insured the plaintiffs against loss or damage by fire, and having issued some nineteen other policies insuring the like number of other persons or firms, its agent, while such policies were in force, entered into an agreement with the defendants, The Commercial Fire and Marine Insurance Company, of Jersey City, by which agreement the latter “reinsure the.American Mutual Insurance Company of Amsterdam, upon the following policies issued by them,” (specifying the said twenty policies,) “loss, if any, payable to the assured upon the same terms and conditions, and at same time, as contained in the original policies. Reinsured from November 30th, ISBA 12 o’clock, at noon, to the expiration of the policy.”

      Seld, that such agreement was a contract of reinsurance, and that the plaintiffs could not sue upon it. That any moneys recoverable under it, for a breach of it, would be the property and assets of the Company so reinsured. That the plaintiffs had no right to such moneys, nor any lien upon them to satisfy a loss under the policy issued to them, notwithstanding the Company which insured them had failed before such loss occurred. That the word “ assured” in such agreement meant the Company re-insured, and not the assured in the original policies, and that it could not be shown by parol that it was the understanding between the defendant and such agent at the time the agreement was executed that the word, “assured,” as used therein, was intended to apply to, and designate the persons insured by the original policies.
    (Before Dues and Bosworth, J. J.)
    Argued March 2nd;
    decided April 25, 1857
    This action was tried before Chief Justice Oakley, and a jury, on the 9th of December, 1856. The defendants moved for a non-suit, when the evidence was closed. The court directed a verdict for the plaintiffs, for $2,203.44, the amount claimed, subject to the opinion of the court, at general term, upon the questions of law, arising in the case, with liberty to the court at general term, to dismiss the complaint, and reserved the right, to either party, to turn the case into a bill of exceptions.
    The complaint set forth the contract of insurance between the plaintiffs, and the Amsterdam Company, and the terms of the policy. It then alleged, “ that on or about the thirtieth day of ¡November, in the year 1854, the said defendants, at the request of the said American Mutual Insurance Company, and for a valuable consideration to them in hand paid by the said company, by an instrument in writing made by the said defendants, and by them delivered to the said company, agreed in substance to assume, and did thereby assume the liabilities, contracts, and agreements of the said American Mutual Insurance Company in the said policy created and contained, and promised and agreed to pay the loss, if any, under the said policy to the plaintiffs) upon the same terms and conditions and at the same time as were stipulated for in the said policy, and did then and thereby become liable to the plaintiffs for any loss happening under the said policy:’*
    It then alleged a loss by fire, the fact of damage exceeding the sum insured, notice to the defendants and service on them of the preliminary proofs, a refusal to pay, and prayed judgment. The answer put at issue the allegations of the complaint above quoted. On the trial, the following facts were established, and proceedings were had.
    The American Mutual Insurance Company, by a policy dated the 10th of June, 1854, and numbered, 4755, insured the plaintiffs against loss or damage by fire, to the amount of $2,500. This company was located at Amsterdam, Montgomery County, New York, and had an agent in the city of New York.
    This Company had issued other policies to other parties) amounting in the aggregate, including the one held by the plaintiffs, to $26,680.
    These policies being in force, their agent in New York, on the 30th of November, 1854, effected a reinsurance with the defendants, by an instrument in writing, in these words:
    “ Agreement of Reinsurance.
    No. 754. $26,680.
    The Commercial Fire and Marine Insurance Company of Jersey City, for and in consideration of the premiums set opposite to each memorandum of policy, the receipt whereof is hereby acknowledged, do, by this instrument, reinsure the American Mutual Insurance Company of Amsterdam, upon the following policies issued by them, loss, if any, payable to the assured, upon the same terms, and conditions, and at same time, as are contained in the original policies. Reinsured from Nov. 30, 1854, 12 o’clock at noon, to the expiration of the policy, viz—

      (The memorandum, among other descriptions of policies, read thus):
    No. I I 1855. 4755 Carrington & Dougherty, 59 Henry Street, 2500 UP 16.48 June 10th,
    Jersey City, N. J. Nov. 30th, 1854.
    J. M. Chapman, President.”

    John L. Cbbw, Secretary.”

    On the 19th of March, 1855, the property insured by the original policy, was destroyed by fire: The plaintiffs prepared preliminary proofs of the loss, and served them on the defendants. Proof of the loss was waived, at the trial.
    By an order of the Supreme Court, dated the 27th of November, 1854, upon notice to, and the written consent of the American Mutual Insurance Company, the latter Company was declared to be insolvent, and that Company, and every of its agents and officers were enjoined and restrained, “from exercising any of its corporate rights, privileges or franchises,” and the property and effects of the corporation were sequestrated, and a receiver ordered to be appointed, and a referee was designated to appoint a receiver. . Such order also declared that “ the said Corporation is to continue in existence, so far only as may be necessary, to enable the receiver to be appointed as above directed, to collect the debts and demands, and distribute the property and effects, belonging to said corporation, in the names thereof, and for no other purpose whatever, and that for all other purposes, and when the above specified objects shall be attained, the said corporation be, and is hereby dissolved.”
    The appointment of receiver was perfected on the 2d of December, 1854.
    The agent, in New York, was wholly ignorant of the order of the 27th of November, 1854, at the time he obtained the agreement of reinsurance. He paid the reinsurance premium out of his own funds.
    The plaintiffs offered in evidence a letter from the receiver to the defendants, dated the 10th of July, 1855, consenting that they settle and adjust, with the plaintiffs, the loss they had sustained, and to relinquish all claims, as receiver, (“ i. e. if he should have any).”
    This evidence was excluded.
    The plaintiffe also offered to show, that it was understood between the witness .and the defendants at the time of the execution of the agreement of reinsurance, that the word, “ assured,” used in said agreement, was intended to apply to the persons named in the list therein contained.
    This evidence was also excluded. The plaintiffs excepted to each of these decisions.
    The testimony being closed, the defendants moved for a non-suit on the grounds,
    1. That on the 30th day of November, 1854, the American Mutual Insurance Company of Amsterdam were dissolved by order of the Supreme Court, and were incapable in law of contracting.
    2. That the plaintiffs in this action, were not the proper parties to sue.
    3. That the court had no jurisdiction of the subject of the action.
    The court ordered a verdict in favor of the plaintiffs, subject, &c., as before stated, and liberty was reserved, in the case, to either party to turn it into a bill of exceptions.

      H. Ketchum, for plaintiffs.

      E. P. Cowles, for defendants.
   By the Court. Bosworth, J.

By the terms of the contract of November 30, 1854, the defendants “re-insure the .American Mutual Insurance Company, of Amsterdam, upon the following policies issued by them,” (a detailed statement of which policies is embodied in and forms part of the contract,) “ loss, if any, payable to the assured upon the same terms and conditions, and at same time, as contained in the original policies. Re-insured, from November 30, 1854, twelve o’clock at noon, to the expiration of the policy.”

If the word “ assured, ” as used in this contract, means the party re-insured, the present plaintiffs have no interest in the contract, and no right to maintain an action upon it.

Assuming the word “ assured,” as there used, to have that meaning, and the contract to be valid, the plaintiffs must look to the American Mutual Insurance Company alone, and to its assets which have and may come to the hands of its receiver, for indemnity.

They have no lien upon the contract in question, nor right to the moneys which the defendants may pay under it. Such moneys, when paid, will form part of the assets of the company which insured them, and the plaintiffs must be paid pro rata with its other creditors.

These propositions are so well settled, that it is unnecessary to do more than refer to the cases which have determined them: Hone et al., Receivers, &c., v. The Mu. Safety Ins. Co., 1 Sand. 137; affirmed by the Court of Appeals, 2 Coms. 235; 1 Arnould on Ins. 288, § 119; Parsons on Mercantile Law, 514, § iv.

The contract of the 30th of November, according to the view taken of it by the complaint, is one, by which the defendants “ agreed, in substance, to assume, and did thereby assume, the liabilities, contracts, and agreements of the said American Mutual Insurance Company, in the said policy created and contained; and promised and agreed to pay the loss, if any, under the said policy, to the plaintiffs,” &c.

The complaint, however, also avers, that on or about the 30th of July, 1855, the said American Insurance Company released and assigned to the said plaintiffs all the claim and demand of the said American Insurance Company against the said defendants, by reason of the premises, of which the said defendants had notice: These allegations are put in issue by the answer.

There is no evidence in support of the fact of such an assignment, and there could not well be any, as such corporation had been dissolved long prior to the 30th of July, 1855.

If the word “ assured” does not mean the party “ re-insured,” and that party only, then it includes and embraces not only the plaintiffs, but also nineteen other individuals and firms. By the contract of re-insurance, the defendants took upon themselves the risks, which the corporation re-insured, had incurred, by issuing twenty separate and distinct policies.

The Chief-Justice must have supposed that the word “assured,” as used in the contract in question, was a word of clear import and obvious application, and, for that reason, excluded evidence offered to show, that by it the defendants and the agent of the other contracting party, understood and intended it to apply to the persons named as the assured in the original policies. The contract is one of re-insurance.

The risks incurred by the American Mutual Insurance Company, by the particular policies which it had previously issued, were the subjects of the contract. By the very terms of the contract, the latter Company were re-insured “ upon the following policies issued by them,” and were properly and truly named in it, as the “ assured.” They were as truly, in fact and in law, the “ assured,” within the meaning of that word, as used in that contract, as were the plaintiffs, in the policy issued to them by the American Mutual Insurance Company.

To treat it as made for the benefit of the original assured, and providing that the loss, if any, should be paid to them, so as to give them a right to recover the amount of the loss, and retain the money for their own indemnity, is in effect making it a double insurance, rather than a contract of re-insurance.

If a contract of re-insurance, the fruits of the contract belong solely to the party re-insured, and must be distributed by the receiver, as part of its general assets, and in the same manner, as the other assets of the insolvent corporation.

If it is a contract, by virtue of which the original assured may recover in their own names, and retain for their exclusive indemnity, the moneys which the defendants are liable to pay, then it possesses none of the elements of a contract of re-insurance.

To give it such a construction, is not only varying its clear legal import, but, in our opinion, its express terms.

Any parol evidence offered to produce that result, should be excluded; 1 Sand. S. C. R. 151, 152.

In the case of Hone et al, Receivers, v. The Mu. Safety Ins. Co., 1 Sand. 138-9, the contract of re-insurance “was the usual printed form of a fire policy, with no change, except the insertion in writing of the prefix re, before the word insure, in the commencement of the instrument.” By it, citing its words, “the said company do hereby promise and agree to make good unto the said insured, their executors, administrators and assigns,” &c.

That contract, being by its terms one of re-insurance, the Court refused to receive parol evidence, varying its legal import as such.

We think it quite clear, that even assuming the contract to be valid, it is one in which the plaintiffs have no interest, and therefore one, upon which no action can be maintained, in their names, as plaintiffs.

This presents a case of an entire failure to prove, in substance, or legal effect, the averments contained in the complaint, as the basis of a cause of action in favor of the present plaintiffs. Code, § 171; Mann v. Morewood et al., 5 Sand. 557.

These views, if sound, render it unnecessary to determine the question whether the contract is obligatory upon the defendants.

The contract by its terms, and in legal effect, is one between two corporations. One of them, the party re-insured, was disabled from contracting, by an order of the Supreme Court, made prior to the date of the contract. That order enjoined and restrained that corporation, and each and every of its officers from exercising any of its corporate franchises,” and sequestrated its effects, and continued it “ in existence so far only as” might (“ may) be necessary to enable the receiver to be appointed,” &c., “ and for no other purpose whatever,” and declared that for all other purposes, “ when the above specified objects shall be attained, the said corporation be, and is hereby dissolved.”

Whether the receiver, at his election, with or without an order of the Court, is competent to adopt and ratify the contract, and enforce it against the defendants, is a question which does not now arise.

We think it quite evident, that neither the Corporation, nor any of its officers, subsequent to the order of the 27th of November, could make any contract, which would bind the Corporation as such, or on which any claim could be established, creating a right to have it satisfied out of its assets.

The contract was made by its agent, and the defendants, upon a mutual mistake, as to the continuing capacity of the re-insured Corporation to make a contract. Whether the defendants, after having received the whole consideration of the contract, and continuing to retain it, can be made liable to any party by reason of, and upon the contract, we are not disposed to discuss, having come to the conclusion, that the plaintiffs have given no evidence in support of the allegations, that by the terms of the contract, the loss, if any, was to be paid to them, and that all the interest of the American Mutual Insurance Company in it, as a competent and actual contracting party, had been assigned to the plaintiffs. The verdict must be set aside, and a judgment entered dismissing the complaint—under the stipulation, giving that power to the Court, and contained in the printed case.