6 Barb. 492 | N.Y. Sup. Ct. | 1849
It is not denied that Madame de Barante, at the time of her death, was seised in her own right, as an heir at law of her father, of the undivided fourth part of the store in Hudson-street, and the undivided half of the land in Herkimer county; nor is it denied that she was entitled to the funds in the hands of the trustees, under the will, arising from the interest and income of her share of the estate, or to the amount in the hands of her guardian; nor did I understand it to be denied upon the argument that the plaintiff, by virtue of the marriage contract, became entitled to all the personal estate, and the proceeds of the real estate of which his wife, at the time of her death, was the owner. I can see no ground upon which the validity of that contract can be questioned. It seems to have been executed with the solemnities required by the laws of France; it was executed in reference to the marriage of the parties, which took place two days thereafter. This- alone would constitute a sufficient consideration to sustain the con
I also agree with the plaintiff’s counsel in the effect to be given to the tenth clause of the contract, whereby it is stipulated, that in case of the death of the wife without leaving children, her husband surviving, the real estate of which she should die possessed in the United States, should be immediately sold,- and the proceeds remitted to her husband. This provision operated as a grant to the husband, contingent upon the event which has happened. The manner in which effect is to be given to the grant is defined; the real estate is to be immediately sold, and the proceeds remitted to the husband. It is a maxim in equity, acting upon the principle of equitable conversion, that whatever is agreed to be done, if the execution of the agreement would be lawful and just, shall be considered as done. See 2 Kent’s Com. 5th ed, 230, note a, where numerous authorities sustaining and illustrating this principle are collected. It is upon this principle that where land is contracted to be sold, in the lifetime of the owner, it will, after his death, though not conveyed, be regarded as personal estate. Indeed, there is no principle of equity, which has a more extensive or varied application. The disposition of a portion of the very estate to which this suit relates, has been controlled by the application of this principle. (Gott v. Cook, 7 Paige, 534.)
The case of Craig v. Leslie, (3 Wheaton, 563,) cited by the plaintiff’s counsel, is very much in point upon this branch of the case. Robert Craig, a citizen of Virginia, had made a will, devising to Leslie and four others all his estate, real and personal, in special trust to sell the same, and then bequeathed to his brother, Thomas Craig of Ayrshire, Scotland, the proceeds of
Assuming, then, that upon the death of Madame de Barante, her husband became entitled to have her real estate sold, and the proceeds remitted to him, the next question presented by the case is, whether this right can be enforced, and if it can, by what means. If the instrument which created this right in the plaintiff had also appointed a trustee to carry into effect the object, as in the case of Craig v. Leslie, no one, I apprehend, would have doubted the authority or the duty of such trustee to sell the real estate and remit the proceeds; but, it is a rule of equity, which is said to admit of no exception, that it never wants a trustee. It is the settled doctrine in equity that no trust shall be permitted to fail for the want of a trustee to execute it. Land to which a trust is attached remains chargeable with such trust in the hands of the heir or devisee. A court of equity will always establish and enforce a trust whenever a competent party applies for its aid, and presents a case entitling him to relief. “ This principle,” said Chancellor Jones, in McCartee v. Orphan Asylum Society, (9 Cowen, 437,) “ partakes
The only question that remains relates to the house and lot in Pearl-street. On behalf of the children of Mr. Kane, it is insisted that, by the eleventh clause of the will, this house and lot, upon the death of Madame de Barante, leaving no lawful issue, became vested in them. On the other hand, the counsel for the plaintiff insists that, under the seventh clause of the will, upon the death of Mrs. Cook, before both her daughters had married or attained the age of twenty years, the absolute ownership of the house and lot vested in them as tenants in common ; and secondly, if, under the operation of the seventh clause of the will, Madame de Barante did not acquire title to the undivided half of the house and lot in question in fee simple, and though it may have been intended that the eleventh clause of the will should apply to the house and lot in Pearl-street, yet that clause cannot have the effect to vest any title in the children of Mrs. Kane by reason of the illegal limitation upon the power of alienation contained in that clause. These questions I proceed to consider.
The leading object of the testator obviously was, to keep the principal of his estate together until the death of both his nieces,
The legal effect of these provisions, so far as they relate to the house and lot in Pearl-street, is next to be considered. It has already been adjudged that “ the executors, as trustees, took no estate or interest whatever in the house and lot in Pearl-street, but that the whole beneficial interests devised, so far as the devise of an estate or interest in the house and lot was legal, passed directly to the persons for whose benefit the same were intended as legal estates.” This was undoubtedly the effect of the 47th section of the article of the revised statutes relative to uses and trusts, upon this part of the will. Mrs. "Cook, the sister-in-law of the testator, then, took a life estate in the house and lot, subject to a contingency which did not happen. She having died before her daughters were both married or had both attained the age of twenty, they became, under the seventh clause of the will, as controlled by the statute referred to, entitled to a legal estate of the same extent and duration as the beneficial use which it was the intention of the testator to secure to them. Upon the argument of the cause, when this will was brought'before the court, for the purpose of settling the construction to be given to its various provisions, it was assumed by all the counsel, that the nieces, upon the death of their mother, took, each of them, a Ufe estate in one half of the house and lot. I think this is the true construction of the provision of the will in this respect; and if it be so, it follows that, upon the death of Mrs. Kane, the period for which the power of aUenation in respect to her half of the house and lot could be suspended, expired. An absolute ownership must have vested somewhere, immediately, so that an absolute estate in fee in possession could at once be conveyed; and so, also, in respect to the other half,
But Madame de Barante might have died before Mrs. Kane. In that event, it is obvious that the vesting of the remainder in her half of the house and lot must have been suspended, by the terms of the devise, until the death of Mrs. Kane. There would then have been no ascertained person to take the remainder; in her half any more than there was to take the remainder ip Mrs. Kane’s half when she died. The only difference between the two cases is, that what, at the time of making the devise, was a possibility In inspect to each half, actually
This, then, is the result of my examination. Mrs. Jennet Cook took a life estate in the whole of the house and lot with a contingent remainder for life in one half to each of her daughters. The contingency happened, and their respective life estates vested. It was not intended to vest any legal estate in Mrs. Cook or the nieces, but such estates resulted from the operation of the statute upon the provisions of the will. It can not, therefore, be inferred that the testator intended to give his nieces any more than a life estate in the house and lot. The disposition which the will made of the remainder after the death of the two nieces, was in contravention of the statute against perpetuities, and was, therefore, void. Such remainder, not having been effectually disposed of by the will, vested in the heirs at law of the testator upon her death.
A decree must be entered declaring the rights of the parties upon the principles above stated. It may also be referred to some proper person, as referee, to sell and convey the real estate of which Madame de Barante died seised, with directions to pay the proceeds, after deducting proper charges, to the plaintiff or his attorney. The trustees under the will, and the guardian of Madame de Barante, should also be directed to pay over to the plaintiff or his attorney, the several amounts in their hands
The defendants Gott and Schoolcraft, and the infant defendants William Henry ICane and De Lancey Kane, are respectively entitled to their costs. As between the plaintiff and John Innes Kane, neither is to have costs against the other.