116 N.Y. 234 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *236
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *237 The question is, whether or not the deed of conveyance made by the plaintiff to the defendant Waddell, was effectual to convey a perfect title to the one-third of the premises of which Agnes Boerum died seized. And that depends upon the result of the inquiry, whether the deeds of Mrs. Bush, individually and as trustee of the will of Agnes Boerum to plaintiff conveyed such title to him.
The will was productive of an equitable conversion of the real estate of the testatrix into personalty; and, for the purpose of the execution of the trusts created by the will, it must be so treated. (Kane v. Gott, 24 Wend. 640; Stagg v. Jackson,
The executors took no title to the real estate as such. They were vested with a power to deal with it as personal estate for the purposes of the execution of trusts created by the will. And one question presented is whether the power of sale came within the duty of a trustee, as distinguished from that of an executor. The question as to where is located the line between the duties which fall upon an executor, and may be discharged by an administrator with the will annexed, and the powers which must be executed by a trustee, has been involved in some uncertainty in view of the apparent want of harmony in judicial opinion upon the subject. The theory upon which the distinction seems to have been founded is, that the duties of an executor pertain to the office, and those of a trustee to the person; that the character given to a trustee has relation to a personal trust, while that of an executor is official solely. Hence it has, in the more recent case of Mott v. Ackerman (
In the present case the real estate, of which the testatrix died seized, became, by virtue of the direction in her will to sell for the purposes there mentioned, personalty as of the time of her death, upon the principle applicable to such case, that what is directed to be done by the will may be regarded as done at the time directed. The doctrine of equitable conversion rests upon that principle. (Pomeroy's Eq. Jur. § 161.) The power to receive the rents and profits of the land, intermediate the death of the testatrix and the sale, did not qualify *241
the character, as personalty, of the land in the hands of the executors. That is incidental to the direction to sell, and the rents and profits so received also have the character of personalty, and are assets in the hands of the executor. (Stagg
v. Jackson,
We have proceeded far enough to show the relation of the executors, as such, to the powers given by the will, sufficiently for the purpose of the question here. And it is unnecessary to consider the nature of the duties which would be assumed after the sale, in the management of the fund, the income of which they were directed to pay Mrs. Bush.
The power of sale was vested in the executors; and, in view of the later authority giving construction to the statute in that respect (2 R.S. 72, § 22), that power of sale would be taken by an administrator with the will annexed. (Mott v. Ackerman,
The statute upon the subject of trusts is not applicable to that created by this will, although analogous principles, to some *243
extent at least, are applied to those of personal property. (Kane v. Gott, 24 Wend. 640; Cutting v. Cutting,
The acceptance of the resignation, as trustee, of the person named as executor in the will did not, therefore, have the effect to relieve him from the execution, so far as it remained unexecuted, of the trust which was devolved upon him by virtue of the office of executor. (1 Perry on Trusts, § 281; In re VanWyck, 1 Barb. Ch. 565; Quackenboss v. Southwick,
There is a further question having relation to the validity of the provisions of the will, by which the testatrix sought to give the fund to the children of Mrs. Bush, if she left any surviving her, and in the event there mentioned. This question arises upon the statute which provides that "the absolute ownership of personal property shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the date of the instrument containing such limitation or condition; or if such instrument be a will, for not more than two lives in being at the death of the testator." (1 R.S. 773, § 1.) At the time of the death of the testatrix, Mrs. Bush had no children living, and she never has had any. But assuming that she does not survive her husband, and that on her death she leaves children surviving her under the age of twenty-one years, the inquiry arises whether the limitation over to them is valid, and that depends upon the determination of the further question whether the absolute ownership would then vest in such children. If it would, there would be no unlawful suspension. Otherwise it is difficult to see how the provision made for them by the will can be supported. The will does not, in terms, give the fund to the children, but directs the executors, in the events mentioned, to pay it to them. The postponement of the time of payment of a gift is not important, that alone will not qualify the absolute character of the ownership. The vesting of it is suspended if some period in the future is annexed to the substance of the gift. In the present case the conditions upon which the right of the children to take the fund depend are to or may arise in the future, beyond the time of the death of the mother, and the contingency is uncertain. The children must reach the age of twenty-one years; and if they do not, the fact that the direction is that the fund go to Mr. Boerum and Mrs. Vanderveer, is not consistent with the vesting of the absolute ownership in the children on the death of their *245
mother. It is, therefore, clear that in the case supposed, and which may arise if Mrs. Bush should leave children her surviving, the observance of the direction of the will will operate to suspend the absolute ownership of the fund for some period of time after her death. (Batsford v. Kebbell, 3 Ves. 363;Patterson v. Ellis, 11 Wend. 259; Warner v. Durant,
Such suspension being for a time not dependent upon lives, and not more than two in being at the time of the death of the testatrix, renders the limitation over void unless it is saved by some provision of the statute. We find none in its support. While the suspension of the absolute power of alienation of real estate, may be extended beyond two lives limited, so as to embrace the period of minority of a child to whom the remainder is limited, and such suspension may be created by a contingent limitation of the fee (1 R.S. 723, §§ 15, 16; Id. 726, § 37), our attention is called to no statute qualifying in that or any manner, the effect of the provision before referred to, limiting the time of suspension of the absolute ownership of personal property. The consequence seems to be that the direction of the testatrix, by her will, to pay the fund to such children in the event mentioned, or on their failure to arrive at the age of majority to pay it to Mr. Boerum and Mrs. Vanderveer, was in contravention of the statute and void. (Manice v. Manice,
Such issue of Mrs. Bush, if she should leave any her *246 surviving, will, therefore, have no interest in this fund or property derived from the provisions of the will; and in the event she does not survive her husband, her interest is limited to a life estate, or to the income of the fund during her life. As a consequence, then and in that case, her brother and sister will be the only heirs and next of kin of the testatrix.
They have conveyed and transferred their unconditional and contingent interest in the property to her. By that conveyance Mrs. Bush acquired the entire beneficial interest in the property. This enabled her individually to convey it to the plaintiff. Her deed to the plaintiff had the effect to vest in him the title to the land. Since all the parties having any beneficial interest in it or its proceeds have thus joined in and made the conveyance, there remains no occasion for the exercise of the power of sale given by the will; and upon the principle that the beneficiaries in the equitable conversion of real property into personalty, may effectually elect to have a reconversion into realty and take it as land, rather than the proceeds of it, we think the exercise of such power of sale may be deemed dispensed with and defeated. (Story's Eq. Juris. § 793;Hetzel v. Barber,
In this case the beneficiaries are in a situation to do so, as the title of the property, treating it as land, was in those three, brother and two sisters, or some of them, and was nowhere else. There is, therefore, no intervening right of any other party to be prejudiced. The contingent and unconditional estates were united in Mrs. Bush by the conveyance to her. These views lead to the conclusion that the defendant has taken by the conveyance to him, the title which the plaintiff undertook to convey. But as the determination is made upon a ground not presented to or considered by the court below, the plaintiff should not have costs.
The order of the General Term should be reversed, and the judgment entered upon the decison of the trial court affirmed.
All concur.
Order reversed and judgment affirmed. *247