82 N.Y.S. 823 | N.Y. App. Div. | 1903
The plaintiff on the 14th day of April, 1902, made a contract whereby she agreed to sell and convey to the defendant certain real estate in the city of New York. The contract provides that “ the deed shall be an executor’s deed, * * * to convey to the vendee, or the vendee’s assigns, the absolute fee of the above premises, free from all incumbrances except as herein stated.” The completion of the contract was adjourned until the 19th day of May, 1902, at which date the plaintiff tendered to the defendant a deed whereby the plaintiff 11 individually and as sole qualifying executrix under the last will and testament of Herman J. Haendle, deceased,” conveyed to the defendant the projierty in question. This deed was objected to by the defendant upon the ground that the plaintiff could not convey a good, marketable and perfect title to the said premises. The question presented upon this submission is whether this deed was sufficient to convey such a title, the plaintiff demanding a judgment requiring, the defendant specifically to
' Prior to his death,- on the 3d of August,- 1899, Herman J. Haendle, the plaintiff’s husband, was the owner of the premises in question. He left a last will and testament which -was admitted to probate on the 20th-of October, 1899, which, after giving certain specific legacies, provided: “ 4. The remainder, of all my property, real and personal,. and wheresoever situated, I give, devise and bequeath to my executors hereinafter named' and the survivor of them, in trust, nevertheless, for the following purposes, to .wit:
“ First. To collect, receive and pay over the income thereof to my wife, Anna Fredericlca, during her natural life, for the support .and maintenance.of herself and our children, with the right and power to use so much of the principal thereof as my said executors may from time to time deem necessary and proper, in their discretion, for the purposes of said trust,” with the, further provision to pay the Unexpended balancé of the principal and income in hand at the time of the death of his wife to his surviving children, and-the issue of any deceased child, share and share alike. By the 6th clause of the will the testator provided: “ For the purposes of the trust hereby-created, I hereby authorize and empower my said executors and trustees and. the survivor of them to sell and convey any and all property which may come into their hands as such executors or trustees,, and to invest and reinvest the proceeds of the sale1 of such property in such securities as in their discretion may seem best,” and the plaintiff was appointed executrix and Charles Mann executor.. Letters testamentary were issued -to the plaintiff, who alone qualified as the executrix of and trustee under the said will, Charles Mann, the other executor named, declining to act. The only executor, therefore, who qualified was the sole beneficiary during the continuance of the trust. She has attempted to exercise the power of sale contained in the 6th clause of the will, and we have: to determine whether by the exercise of that power she could convey a good title to the real property which constituted the trust estate.
This will, therefore, created a trust for the life of the wife, and she and another were appointed trustees, to whom the legal title was conveyed. The devise of the testator’s real estate was direct to his executors named in the will, and the survivor of them, not limited to the executor who should qualify. The condition that was here created was substantially that presented in the case of Rogers v. Rogers (111 N. Y. 228). Judge Finch, in delivering the opinion of the court in that case, says: “ The will did not attempt to unite in the same person the office of trustee and the interest of
. The question then arises whether this sole trustee and sole beneficiary could exercise a power of sale given by the will. . In Woodward v. James (115 N. Y. 346) the testator appointed his wife sole executrix, and gave her one-half of the income of all his property of every kind of which he should die possessed, and also the use of his- two houses, one at Gold Spring and the other in the city of Rew York, and gave his legal heirs the remainder of the income from his property during the life of his wife, and to his legal lieirs thó reversion and ownership of all his estate and property after her death. In discussing this will Judge Finch says: “It is undoubtedly true that the same person cannot be at the same time trustee and beneficiary of the same identical interest. ■ To say that he could would be a contradiction in terms as complete and violent as to declare that two solid bodies can occiipy the same space at the same instant. Where," ■ however, the trustee is made beneficiary of the. same estate, both in respect to its quality and quantity, the inevitable result is that the equitable is merged in the legal estate, and the latter alone remains. If, then, it be granted that,
The case of Rankine v. Metzger (69 App. Div. 264) is not opposed to this view. In that case the surviving trustee who executed the power of sale was a beneficiary only as to one-ninth interest in the trust property, and sustaining the exercise of the power of sale by the trustee, -Mr. Justice Hatch said : “ The trust itself is not sever-able; it "is one and indivisible. .The surviving trustee had clear authority to execute the trust provision as to eight-ninths of the trust property,, and in-this respect'he was subject to no infirmiiy whatever. The authority was to sell the whole interest. The trustee could no more save but his own share from passing under the execution of the power than he could the interest of any other child, arid if he sought to make severance, he could not do it, as-the interest .of each would be equal to his own in .the part reserved. As the. trust was. good in its inception and was indivisible, the partial interest ' of the trustee, we think, may not intervene to defeat its execution, and upon the death of his cotrustee the power was properly executed and conveyed good title,” and section 2818 of the Code was cited as-applying to such a case. That section applies only to a case where one of two trustees is dead, has become a lunatic, has been removed or has resigned, and not to a ease where one of the two trustees has. never qualified. . j
It follows that this plaintiff was not qualified to execute- the trust,.
Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred»
Judgment ordered for defendant, with costs.
How contained in Laws of 1896, chap. 547, § 80.— [Rep.