105 N.Y. 185 | NY | 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *188 This is an action of ejectment to recover possession of one hundred and fifty-six acres of land situate in the county of Cattaraugus, brought by the plaintiffs as executors of the will of Benjamin Chamberlain. The plaintiffs claim that Benjamin Chamberlain died, seized of an estate in fee simple in such land, in February, 1868, and that power of sale, as well as the title thereto, became vested in them by virtue of the provisions of his will. They also claim that, having executed the power of sale by conveying the lands to one Freeman, in 1880, for a valuable consideration, and such deed being void by reason of an adverse possession in the defendants at the time of its execution, this action is brought, under the statute, for his benefit to recover such lands.
It is an elementary rule in ejectment, that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary's, and this being so, it will be unnecessary to consider the defenses pleaded in the answer, unless we come to the conclusion that the plaintiffs derived title to the premises under the will of the testator. Upon the trial, the court directed a verdict for the defendants, holding that the plaintiff had shown no title in the premises, and the General Term, on appeal, affirmed such judgment.
The question presented is determinable by the provisions of the will, and such additional force as may be given to the plaintiff's claim, by reason of the conveyance to Freeman, and the provisions of the statute authorizing an action for his benefit in the name of his grantors. *190
The provisions of the will are somewhat voluminous, but, so far as they bear upon the questions under discussion, are substantially comprised in its eighteenth and twenty-second subdivisions, which read as follows: "18th. I hereby further will and direct that all my estate, not otherwise hereinbefore disposed of, be divided into two equal parts, one of said parts to be paid to the Centenary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, to be by said corporation invested and kept permanently invested, and the interest and income thereof used and expended by said corporation for the benefit of Allegany College at Meadville, Pennsylvania, in such manner and for such specific purposes as said corporation shall direct; and that the other of said parts be paid by my executors to the trustees of the Chamberlain Institute, to be by said trustees permanently invested in bonds and mortgages upon productive farming lands in this State; such mortgages to be first liens. The said principal to be kept permanently invested, and the interest and income thereof to be received by said trustees and by them used in the payment of the salaries of tutors and professors employed to teach in said institute, and in purchasing books and apparatus for the library of said institute," etc. "22d. I hereby further nominate and appoint as executors of this, my last will and testament, Thomas J. Chamberlain, Amos Dow, Charles P. Adams and Alonzo Kent. And I give, bequeath and devise all my real and personal estate not hereinbefore specially devised and bequeathed, to my said executors in trust for the payment of the bequests and legacies hereinbefore specified and ready to be paid; and for the purpose of executing such trust I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute and deliver the necessary conveyances, assignments and releases of the same, and to sell such estate or any part thereof at such time or times and upon such terms as to them shall seem proper."
It is, of course, well settled that a general devise of lands in trust to executors, to sell and convey them, vests no title in *191
the trustees. (Manice v. Manice,
Although the provisions of the will are inoperative to create a valid express trust under the statute yet the power therein conferred might still be exercised as a power in trust, but in that event it is also expressly provided that the title shall descend to the heirs-at-law, subject to the execution of the power. (§§ 56, 58, 59 R.S.; Cooke v. Platt,
In Donovan v. Van De Mark it was held that the will devised the real estate to the executor in trust, with power, either directly or inferentially, to receive the rents and profits and apply them according to his judgment, and that therefore *193 a valid trust was created and a legal title vested in the trustee. In that case the right to take the rents and profits was by the will clearly intended to be given to the executor and in that respect it differs from the case at bar.
The argument, that title in the executor was to be implied from the intent expressed in sections 18 and 22 to give it to them, is effectually refuted by reason of the adjudication of this court, in Chamberlain v. Chamberlain (
It was said by the chancellor in Haxtun v. Corse (2 Barb. Ch. 521) that "it was not sufficient to deprive an heir-at-law or distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or *194 distributee, should not inherit any part of his estate. But to deprive an heir or distributee of his share of the property which the law gives him in case of intestacy, the testator must make a valid and effectual disposition thereof to some other person." It is, therefore, quite plain that the executors did not take title to the lands in question under the will, unless such claim can be supported upon some other theory than the one discussed.
It is, however, urged that the authority given the executors to sell and convey the real estate for the purposes of the will worked an equitable conversion, and so changed its character as to take it out of the operation of the rules provided by statute, for the descent of real estate. As we have seen, under the construction given to this will, there was no necessity in satisfying its purposes, that there should be a conversion, and equity will never presume a conversion unless it is demanded to accomplish the lawful purposes expressed in the will by the testator.
Judge ALLEN said, in Chamberlain v. Chamberlain
(
While, in the determination of the claims of heirs, devisees and legatees arising under a will, the law will consider a conversion of real into personal property to have taken place for *195
certain purposes in special cases, it never does so unless there has been a valid devise of the property in dispute in some form to a specified beneficiary, and the purposes of the will require it to be done. It was said by Judge EARL, in Wilder v. Ranney
(
In that case it was held that an equitable conversion of the real estate did not authorize its sale and conveyance by one executor without the co-operation of his co-executor.
The decision of this case might also, we think, have been rested altogether upon the former determination of this court inChamberlain v. Chamberlain (supra), which rendered the questions therein determined stare decisis. The validity of the trust attempted to be created by the provisions in question, having there come under consideration it was held that in so far as the testator attempted by the residuary clause to give to the institutions therein named, more than one-half of his residuary estate, his effort was ineffectual, and that such portion of his estate as was not well disposed of by will, descended to the testator's heirs-at-law and next of kin. Under this decision and in accordance with the remittitur transmitted to it, judgment was on the 3d of October, 1871, entered in the Supreme Court in the clerk's office of Cattaraugus county, by which it was determined "that the real estate of the said Benjamin Chamberlain, which he held or owned at the time of his decease, descended to his heirs-at-law, subject to the execution of such of the valid and effectual provisions of said last will and testament as relate to or affect the same," and exempt as aforesaid from any claim or right of dower on the part of the said Lucy Chamberlain, and that in case, after the payment of the debts of the testator and the execution of the valid and effectual provisions of said last will and testament, there shall remain any surplus from the *196 personal estate of said testator, such surplus shall, and is hereby declared and held to belong to and shall be distributed and divided between and among the next of kin of said testator as their rights shall appear, in the manner provided by law in cases of intestacy."
The action in which this judgment was rendered was brought by one Calvin J. Chamberlain in behalf of himself and the other heirs-at-law and next of kin of Benjamin Chamberlain against the plaintiffs herein, the executors of the said Benjamin Chamberlain, and the principal legatees under such will, to obtain a construction of its provisions. A necessary result of this determination, under the doctrine of stare decisis, is to foreclose all parties from the right or privilege of reopening or discussing again the questions therein determined.
It was said by DENIO, J., in Towle v. Forney (
The application of this doctrine to the case in hand seems peculiarly appropriate, inasmuch as a large estate has been administered by the present plaintiffs, in accordance with the principles declared in the former decision, and the entire known property of the testator converted and distributed among the heirs-at-law, next of kin and legatees, by a judicial settlement before the surrogate, acquiesced in by all parties interested. As early as 1875 a large sum derived from the residuary estate had been equally distributed by judicial proceedings, between the residuary legatees and the next of kin, and said legatees had executed and delivered to the plaintiffs proper vouchers acknowledging full satisfaction of their legacies.
But one question remains to be discussed, and that relates to the effect which the deed from the executors to Freeman has upon this action. It is clear that such a deed being void under the statute could have no affirmative effect in supporting the cause of action. While the statute in such a case authorizes the grantee in the deed to maintain an action in the name of his grantor to recover possession of the lands described, from the occupant thereof, it is obvious that such deed adds nothing to the original right of the grantors. (§ 1501, Code of Civ. Pro.)
The intent of the statute was to enable the grantee to avail himself of a title which over-reached the right of the adverse possessor, and bar such possessor from making the objection that the plaintiff in the action had parted with his title. Such an action can be maintained independent of the consent of the grantor, and is supposed to be conducted by the grantee alone for his own benefit, but it must necessarily be sustained, if sustainable at all, upon the validity of the title originally existing in his grantor. It is brought in his name and upon the theory of an original right in him to the possession of the property. But it has been seen that the plaintiffs never acquired any title or right to the possession of the disputed premises. The title to the premises originally existing in their testator passed at the time of his death to his *198 heirs, and from that time they alone had a right to the property, and the exclusive right to maintain an action for its possession.
The power of sale given by the will to the executors could be made effectual only by its valid exercise, and this it is clear has never been effected. They stand, therefore, as plaintiffs in this case precisely as though its exercise had never been attempted, and they were asserting only the rights in the property which the will gave them. As we have before shown they did not take the title by the will, and they have shown no other right to recover in this case.
The judgment should be affirmed.
All concur.
Judgment affirmed.