The first question we consider, as the one of controlling importance, is, whether there has been a valid and sufficient execution of the power of sale conferred on John H. Gindrat, as trustee under the deed of trust executed by John Nickels on July 17th, 1845. If so, this would cut off the interest of the plaintiffs, as remainder-men under the provisions of that instrument,' and be fatal to their right of recovery in this action.
This deed is made in trust upon a recited valuable-consideration, moving from the trustee to the grantor, (1) “for the sole and separate use, benefit and behoof of Sarah L. Gindrat, ” the wife of one John Gindrat, and the mother of the trustee, during the term of her natural life; (2)’at her death, in trust for her three children, Abram Gindrat, Mary Elizabeth Winter, and William B. Gindrat, for' and during the term of their natural lives; (3) at their death, the premises conveyed to “vest in the heirs at law and children of them, the said Abram, Mary Elizabeth, and William B., that may be living at the time of their deaths.”
The clause of the instrument, which vests in the trustee the power to sell, is not absolute, but conditional, being in the following words ; “ Provided always, and it is expressly provided and agreed by and between the parties, that the said trustee may at any time, with the advice and consent of John Gindrat, the father of said Abram, Mary Elizabeth and William B., sell and d-ispose of any or all of said lots, for cash, or upon credit, as they may think proper; and it is further agreed and stipulated by and between the parties, that, should John Gindrat die, leaving any portion of said trust property undisposed of in' the hands of said trustee, then it shall be necessary'for said trustee, before disposing of said property, to obtain the assent in luriting of said cestui que trust.”
What is meant by the phrase “ said cestui que trust," and to whom is it intended to have reference ? Does it refer to Mrs. Sarah L. Gindrat, the first beneficiary under the deed, who was primarily entitled for life to the usufruct of the property, with its rents and profits ? or does it refér to the
Can we suppose that the grantor intended to confer on the trustee, John H. Gindrat, the power to sell, after the death of his father, John Gindrat, who died in March, 1851, only on condition that he obtained the assent in writing of the three children of John and Sarah L. Gindrat (Abram, Mary Elizabeth and William B.), and such of their children as “might be living at the time of their deaths,” who would be the remainder-men in the deed, and, therefore, in a generic sense, also cestuis que trust equally with the second class of life-tenants ? If we are to enlarge the singular of this word into the plural, by judicial construction, it will obviously include the remainder-men as well as the second life-tenants, for both classes are beneficiaries — or cestuis que trust, within the more comprehensive signification of the phrase. No sound reason can be adduced which would include the one, not equally applicable to the other. This construction would lead to results embarrassing in their nature, if not absurd and impracticable. It can scarcely be supposed that it was intended by the grantor in the deed that the power to sell should depend upon the assent of all these beneficiaries, some of whom might not be in existence, or might be minors of tender years, at the time when it was deemed expedient to sell; and the death of any one of whom, according to the well-settled rule of the common law, would defeat the execution of the power by the survivors. It must be supposed that the grantor was not ignorant of this rule — that he knew that, where the consent of more than one cestui que trust was required, as a condition to the
2. We next proceed to inquire whether the deed made by Sarah L. Gindrat, John H. Gindrat, and others, on December 10th, 1853, operated as a valid and sufficient execution of the power. There being in this deed no direct reference to the power, the question, which is one of intention, may be solved by implications, dependent on the words, acts or deeds of the party demonstrating such intention — by which is meant all relevant facts and circumstances illustrating or throwing light upon the matter. It must be made reasonably clear and manifest that the conveyance in question was intended as an execution of the power, and not otherwise. Matthews v. McDade,
The early English cases on this subject established a rule which so frequently operated to deféat the'intention of grantors and testators, as to require a decided departure from it, accompanied with frequent criticisms of its unsoundness by the most learned judges. In one case, Lord Eldon was induced to declare, that he was “ not sure the rule did not oblige the court to act against what might have been the intention nine times out of ten.”—Nannock v. Horton, 7 Ves. Jr., 398. In another case, an eminent Vice-Chancellor said : “ I must, although almost ashamed to say it, decide against what I firmly and sincerely believe to have been the intention of the testatrix, that the power of appointment has not been exercised. Iam bound, however, by the authorities. I can not help myself, and I must so decide.”—Davis v. Thorne, 2 De Gex & Sm. 347. So, in another case, Sir William Grant was forced, as a judge, to reach a conclusion which his judgment, as a jurist repudiated.—Jones v. Tucker, 2 Mer. 533.
The strictness of this rule, characterized by Sir Edward Sugden as one “distinguishing power from property,” — that is, the power to dispose of property from- the technical right of property — has been repudiated by the modern cases, and there is now everywhere manifested by the courts a growing'disposition to adopt a principle more liberal to the execution of such powers, and more just and certain in the ascertainment of the supposed intention relating to their execution. In Blagge v. Miles,
There are several facts which, under this rule, seem to us
(1.) He owned no title or interest in the property conveyed, which fact we must presume he knew; and the instrument nevertheless has reference to the specific property which was the subject of the power. The case is thus made to fall within the second class of cases described in Blagge v. Miles, supra. We understand this class to embrace cases where the donee of a power, having no interest in certain property, or else an interest less than the whole, but having a power to appoint or convey the whole, undertakes to make such appointment or conveyance in fee simple, in compliance with his authority, but without reference to the power; for this is a reference to the property, as distinguished from his fractional or qualified interest in it, and the intention to execute the power will be implied. To use the language of Lord Hardwicke, in Casiuell’s Case, 1 Atk. 490, “he must do such an act as shows he takes notice of the thing he had power to dispose of.” And in Probert v. Morgan, 1 Atk. 440, Lord Hardwicke held, that where a man had “power to charge an estate,” if he sufficiently described the estate, it would be bound, “especially where the person charging is the purchaser of the power.” It is said in Tiedeman on Real Property, § 569, that “The courts have, of late years, so far relaxed the rule as to construe the instrument to be, by necessary intendment, a good execution of the power, if it can not operate in any other way, notwithstanding the deed or will purports to dispose only of the individual property of the donee.” And further, “Where the power is not coupled with an interest, if the donee has no property which he could dispose of by means of the instrument executed, it will be a good execution of the power, though neither the power nor the property was referred to.” Mr. Washburn, in discussing this subject, says: “An inference as to the intention may be drawn from the character of the property of the donee of the power. If his property not' subject to the power is so small, or of such a nature that the descriptions of the property in the deed or will .are meaningless unless construed as applying to. the property subject to the power, the deed or will will be construed as an execution of the power. Thus, if one have a life-estate in land, and a potoer of appointment in fee, and conveys the fee, it is an execution of the power.”—2 Wash. Real Prop. (5th ed.), 713. In Bishop v. Remple,
(2.) The deed in question purports, not to convey the mere life-estate of Mrs. Sarah L. Gindrat, and the other two beneficiaries who sign it, but it is a conveyance in fee for a valuable consideration, containing covenants of seizin and warranty; thus showing that the donee of the power and the other grantors intended to convey nothing less than a good and perfect title. In Hall v. Preble,
(3.) The deed, moreover, is for a valuable consideration, and this is a fact of significance in its interpretation. Lord Bedesdale says, “When a person acts for a valuable consid
The above principles make it. clear to our minds, that the deed in question was not intended to convey the mere, life-estates of the beneficiaries, but was intended as an execution of the power of sale vested in the donee of such power, John H. Gindrat. The signatures of the others, purporting to be grantors, except that of Mrs. Sarah L. Gindrat, were probably , attached from a super-abundant caution,, as is often done in such cases. It is not unfrequent for persons who have contingent interests in land to sign instruments of this nature, as a further assurance of title, especially where warranties are required.
We hold, that the power was sufficiently executed, by the deed, if the consent of Mrs. Sarah L. Gindrat can be held to have been expressed in the manner required by law, she being, as we have seen, the only cestui que trust whose consent was g,tthe time required to the execution of the power.' This question depends on the construction of section 2215 of the Code of 1876, which was in force at the date of the deed, and which reads as follows: “§ 2215., Where the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed, or must be certified in writing thereon; in the first case, the instrument, and in the second, the writing, 'must be signed by the party whose consent is required.”
3. Was the signing of the deed by Mrs. Sarah Gindrat a substantial compliance with this requirement? We are of the opinion that it was. We have held that the deed itself showed a clear intention to execute the power vested in the donee — there being an express reference in the deed. to the subject of the power, and its terms not being satisfied unless we infer the existence of such intention. This being true, an expression of consent to the deed itself, by signing it, was. the' best possible form of consent to the execution of the power, other than by direct reference to it. The statute does not, in our opinion, mean that the consent shall be ineffectual unless it expressly refers to the power. The .deed may execute the power without such reference; and if the minds of the donee, and of the third person whose consent is required, concur in the intention, and the deed expresses it, the statute, we think, is satisfied. The law looks at the substance of things, rather than at forms
We might add other reasons corroborative of the conclusion reached by us, that the power of sale vested in the donee, John H. Gindr.at, was properly and legally executed, but we deem it unnecessary. The sale made by him, under the deed of December 10, 1853, operated to cut off the interest of the plaintiffs, conceding that their interest was a vested one, as to which there is much doubt. .
Affirmed.