3 N.Y.S. 574 | N.Y. Sup. Ct. | 1888
It is difficult to reconcile the granting part of the deed, which is absolute in its terms, and the provision quoted, and ascertain the extent of the interest or power, if any, actually reserved. Before any effect can be given to these ambiguous sentences the intent of the parties must be ascertained, which may be searched for in the words of the instrument, in the relation of the parties, and in the circumstances of the transaction. The granting part of the deed is absolute in terms. It is conceded that the grantor at the date of the deed was indebted to the grantee in the recited consideration, —$1,735. The grantor was the father of the grantee, and they resided together on the premises. The provision quoted seems wholly repugnant to the grant; but if the intent of the parties can be ascertained, and it is not wholly inconsistent with the grant, it should be given effect.
The first and second sentences of the provision are, in terms, inconsistent. The first sentence reserves to the grantor power to mortgage or convey all or any part of the premises; while the second declares it to be the intent of the parties to convey to the grantee the remainder of the property, provided the grantor failed to execute the above power. What remainder? Ho remainder known to the law then existed or was created by this deed. A remainder necessarily rests on a preceding estate. It is clear that neither the parties nor the draughtsman of the deed understood the legal signification of the word “remainder.” This deed must have been executed for a purpose, which, we think, was to pay or secure the indebtedness of the grantor to the grantee; and by the word “remainder,” that the parties or their draughtsman attempted to describe what would be left of the property after paying this indebtedness; and that the power to mortgage or alienate all or any part of the premises was intended to be subject to the grantee’s interest; but if the power was not exercised, the grantee was to have the entire premises at the death of the grantor. This interpretation of this provision, which, as a whole, is repugnant to the grant, and the two sentences of which are repugnant to each other, saves the provision from condemnation as senseless and void, and seems to carry out what the parties should have and probably did intend to effectuate.
The remaining question is, was the power well executed ? If the deed was executed for the purpose above, declared, the attempt to deprive the grantee of her interest in the premises was a fraud. The power reserved was “to alienate or mortgage.” The premises were not mortgaged, nor were they alienated, within the intent of the parties. To alienate is to divest one’s seif of property or title; to transfer property from one’s self to another. Abb. Law Diet.; Whart. Law Diet.; Worcest. Diet. Timothy Harty did not, by the three deeds of October 9, 1883, divest himself of the premises, nor did lie intend' to; but intended to destroy the interest of his daughter, and vest the entire estate in himself. This was a fraudulent execution of the power, which was void in law and in equity. 2 Sugd. Powers, 180, 181; Lewin, Trusts, (8th Ed.) 616. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.
