52 N.Y.S. 353 | N.Y. App. Div. | 1898
The property, the subject of the contract sought to be enforced in this action, was purchased by the defendant at public auction, and the title ivas to be closed on April 8, 1896. The first question presented is, whether on that day the plaintiffs tendered an apparently marketable title. If they did not, even though they fortified it by evidence adduced upon the trial, it would follow that the portion of the judgment charging the defendant with interest on the purchase price would be unjust. That depends upon whether the deed tendered by the plaintiffs as trustees under the last will and testament of George Faile, deceased, was such as the defendant was bound to accept; and this, in turn, depends upon the record title of the plaintiffs.
The records show a deed from one Barnard Bayley to George Faile, dated August 19, 1831, and a deed from Aaron Brown, sheriff, to George Failo. The deed from Bayley covered all the premises described in the complaint, except one two-thousandth part thereof, which was covered by the sheriff’s deed; and in the further discussion of the facts we shall refer to these as the Bayley tract and the Fisher piece. In regard to the Bayley tract, the title
That George Faile made claim to both parcels is evidenced, not. alone by his having taken possession, but by the fact that in his will he specifically mentions the property and disposes of it by directing that, upon the death of his wife, it, together with the rest of his real estate and personal property, should be converted into cash and the proceeds divided into four equal parts, one of which he bequeathed to his son Edward G. Faile absolutely; another to his son Thomas H. Faile absolutely; and directed that one part be held in trust to the use of his' daughter Jane H., afterwards Mrs. Rutherford, for her natural life, and afterwards distributed unto and among her lawful issue then living, if any, per stirpes ; and that the remaining part be-invested and held in trust for the use of his daughter Joanna, wife of William Penfold, for her natural life, and at her death divided and distributed unto and among her lawful issue then living, if any, per
All qualified, except the wife, who died in 1854; and the last of the executors who qualified died in January, 1873, without making any sale of the farm in question. Thereafter, in July, 1873, an action was commenced in the Supreme Court, praying that some suitable and proper person be appointed to execute the trust contained in the will of George Fade under the direction of the court, and that such person be authorized and empowered to sell the real estate therein described and to convey the same to the purchaser or purchasers, and to divide and pay over the proceeds as directed by the will. By the judgment in that action the plaintiffs were “appointed trustees to carry into effect the trusts contained in the last will and testament of the said George Fade, deceased; and it is further ordered the said Samuel Fade and William TI. Penfold, and the survivors of them, have all the powers of the original trustees and executors named in the said will of the said George Fade, and that they have power and authority to make sales of real estate, convey the same to the purchaser or purchasers, and distribute and dispose of the proceeds of sale in like manner, and as fully and comply
In assailing the efficacy of this judgment, the appellants contend that there were six remaindermen who were not made parties to that action and upon whom the judgment is not binding, all of them
Thomas Hall Fade was entitled, under his father’s will, to a onefourtli interest in the farm or the proceeds when converted into cash, and, having died unmarried and without issue, he left a will "by the terms of which he divided it among his nieces and nephews and their issue, appointing- for that purpose trustees. These latter were parties to the action, as was every other person .having an interest of any kind, except the six remaindermen mentioned, who, it is claimed by the plaintiffs, were represented by the trustees appointed by the person through whom they derived their interest in the property. If the action in the Supreme Court had been one in partition, there might be some force in the suggestion that these remaindermen should individually have been made parties. But considering the nature of the action, which was.brought for the purpose merely of having some person appointed to execute the trust, a moment’s consideration will show that the absence of these remaindermen in no way affected the jurisdiction of the court or the validity of the judgment entered. The court, upon the facts being brought to its attention upon an ex parte application, made by any one interested in the trust estate, could have appointed a suitable person to execute the trust in the will under its direction. Hpon the death of a surviving trustee, the trust devolves upon the court, and the power is given the latter (1 R. S. 730, § 68) to appoint a person to execute the trust. (Brater v. Hopper, 77 Hun, 246.) In the action there was a failure to observe the distinction between the right of the court to appoint a substituted trustee and its right to appoint a person to act under its direction to execute the trust. But this ivas in no way fatal, for the reason that calling them trustees of George Fade, instead of their being designated as persons appointed by the court to execute the trust was, at most, a misnomer, and did not prevent the persons named from performing the duties which' were directly and precisely defined by the judgment.
Equally untenable is the further contention that the Supreme Court had no jurisdiction or power to entertain the action or render the judgment appointing the plaintiffs trustees, or to clothe them
ITo question can arise with reference to the continuance of the power of sale given to the executors by the will of George Faile. It was not contemplated by the testator that that power should necessarily be exercised before the death of the widow, or to create a trust fund for her. There is no requirement that the power should be exercised during her life. On the contrary, it was contemplated by the testator that it might not be exercised during her life, because a distinct inhibition upon selling during the lifetime of the wife is made, unless that sale be made with her consent. Therefore, unless she did consent, the power of sale could not operate during her lifetime. ITot being so exercised, it could only go into effect for the purposes of distribution or division, after her death. Upon the decease of the widow, as before stated, the estate was to be divided into four portions ; one portion to go to one son, a second to another, and the remaining portions of his two daughters were to be put in trust. The power of sale is given independently of the dispository provisions, in an entirely separate clause of the will, and is one evidently to be exercised for the purposes of distribution and settlement of the estate. It is a power either to sell or dispose of all or any part of the real estate in fee simple, and necessarily applies to a sale for the purpose of converting it into cash, and to constitute the four equal separate parts to be made by divis
When the action was commenced and the judgment rendered, only one of George Faile’s daughters survived, namely, Mrs. Rutherford; and the Supreme Court had previously appointed Samuel Fade trustee for the share set apart for her use. Upon this, the appellant bases the additional objection to the judgment that, as the beneficiaries of the trust, except Mrs. Rutherford were dead, and as she had a trustee appointed for her share, the trusts themselves terminated and the trust estate was ended. There was no inconsistency in the appointment of a trustee for Mrs. Rutherford’s share or insuperable bar to the court in the Supreme Court action appointing the plaintiffs. Mrs. Rutherford’s trustee was a party to that action, and the judgment was, therefore, as binding upon him as upon any of the other parties. Hor do we think it important to determine the question as to when the trusts terminated, because it would only result in our concluding, either that the plaintiffs when appointed had conferred upon them a power of sale as trustees, or that they were vested with the naked power of sale for the purpose of selling the property and making distribution as provided by the will. In either view, they had power to sell.
The insistence that, in taking back a purchase-money mortgage in part payment, the plaintiffs exceeded their power, we think is without merit. The will does say : “ Upon the decease of my said wife I order and direct the whole of my estate, real estate and personal, to be converted into cash and the proceeds thereof to be divided into four equal parts.” This, however, is followed by the subsequent provision : “ And I further direct that the proceeds of all sales made prior to the decease of my said wife be invested on bond and mortgage and the interest thereof paid to my said wife during her natural life.” It is evident that what the testator meant was, not a sale by which the executors and trustees should receive actual money, but a direction to prevent their selling it for other property or for anything except the equivalent of cash, and this becomes clear when we recall that, even if the property were sold during the life of the widow for actual cash, the proceeds were to be .in vested in bond and mortgage until the trust in her favor terminated by her death. As a purchase-money ’ mortgage is the highest form of mortgage, no
The objections, some of which we have noticed, as to the right of these plaintiffs to convey such title in the property as George Faile had at the. time of his decease, are not in our opinion well taken. But upon the record • title of George Faile to the property as it stood in 1896, when the deed was tendered, we think that the absence of any evidence to explain the missing link in the chain of title between Marsh and Bayley, from the latter of whom Faile took title, was sufficient to make the defendant hesitate to accept the title as marketable. In the recent case of Blanck v. Sadlier (153 N. Y. 556) the court held that, “ Although the title tendered may, in fact', be good, yet if it is subject to reasonable doubt depending upon the ascertainment of some material fact extrinsic to the record title, to be found by a jury when the question arises, the purchaser in general will not be required to complete the purchase, for he is entitled to a title not only good in fact, but marketable.” Had the defendant stood on such objections, it is doubtful if the court would have compelled him to take. That Faile himself during his lifetime was not indifferent to fortifying his own title is evidenced by the fact that the record shows a deed from one John Robert Marsh, of England, to Thomas Bayley, of all the real estate of which John Fleetwood Marsh died seized in the United States; and we have the deeds from Thomas Bayley to Robert Henderson, and from the latter to George Faile, conveying the Bayley tract. In this action, however, brought to compel him to take, the defendant demanded by way of relief “ that if the court shall determine that the plaintiff* can convey a marketable title to said property, that
We, therefore, conclude that the plaintiffs on the trial proved that a good and marketable title to the premises mentioned in the complaint was tendered to the purchaser, and that, under the position he takes in the answer, judgment should be affirmed, but inasmuch as there was an open and debatable question when the suit was brought respecting the title, it is not equitable to charge interest upon the bid to the defendant, and in that respect the judgment should be modified, and as so modified affirmed, without costs.
Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., (concurred.
Judgment modified as directed in opinion, and as modified ■affirmed, without costs.
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