76 N.Y.S. 5 | N.Y. App. Div. | 1902
Lead Opinion
The questions for our determination are: Was there a valid limitation upon the, estate of Sylvester in favor of Ralph W. Maverick,, and is it still effective ?
As stated by the plaintiffs’ counsel, “ probably no branch of the law of estates created by wills presents such an apparent conflict of decision as the question whether a valid remainder can be limited on an estate upon the non-exercise by the first taker of a power of disposition.” The artificial rules of construction based in part on the use or absence of the words “ heirs, issue,” etc., which were in force prior to the Revised Statutes, no longer obtain; and the controlling factor now is the inteiition of the testator and the testamentary scheme, which is to be. gathered from a reading of the entire will. An illustration of the view taken before the Revised Statutes is to be found in the case of Paterson v. Ellis (11 Wend. 259). So also in the early case of Jackson v. Robins (15 Johns.
We have been referred to no case, wherein the legatee had the power of disposition by will, that he did not take ah absolute estate. This power of disposition by will has been regarded as a controlling element and a crucial test upon the question as to whether the estate given is absolute or. defeasible. If the legatee can only dispose of the estate during life, then the limitation over has been sustained because within the protection of the statute. But a similar rule has. not been applied where there has also been conferred upon the legatee a right to dispose of the corpus by will.
The question received a thorough discussion in the case of Van Horne v. Campbell (100 N. Y. 287) wherein the authorities are collated, and the extent to which the rule of common law has been changed by the Revised Statutes is considered. There the testator devised real estate to his wife for life, with remainder to his són D. “his heirs and assigns forever,” and another parcel to his son H..
Upon principle, therefore, as well as upon authority, we think it was not intended that the Revised Statutes should in any way change the rule that where the entire estate is given with the power absolutely to dispose of-it by deed and by will, there is nothing left in the testator upon which a limitation over can take effect. This is but another way of saying that after one has given his entire estate away once, he cannot give it away again. What the testator here intended was to give the property absolutely to Sylvester should he return from foreign parts and enter into possession, which, as we have seen, he did. It was only in the event of his not returning and entering into possession, that provision was made for a trust in Ralph’s favor which was. to continue during his infancy, or at most during life.
It will be noticed that unless this construction prevails the result
It .is unnecessary to consider the other contentions of the defendant that this trust is void for the reason that the corpus and not the rents and profits are directed to be. applied, and constitutes only a power in trust, ceasing when the cestui que t/rust reaches majority, and that the trust in any event is terminated, as its purpose was to provide for the maintenance and education of Maverick, and to fit him for some useful occupation, which purpose must be deemed to have been accomplished when he reaches majority. On the ground of repugnancy, therefore, we think that the clause relating to Maverick was void and the defendant is entitled to judgment.
Judgment accordingly ordered for defendant, with costs.
Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
(dissenting):
Ralph W. Maverick was a minor, not only at the time the will was made, but also at the time of the death of the testatrix and Sylvester W. Pike. The latter having died while in possession of the property without having disposed of it by his deed or will, the testatrix has declared, in clear, pointed language, absolutely free from ambiguity, her intention in those circumstances that Maverick should have some interest in the premises. Where, as here, the intention of the testatrix is not left in doubt, it is the duty of the court to so construe the will as to carry such intention into effect, if that may be done consistently with the provisions of our statutes. (Wager v. Wager, 96 N. Y. 167; Smith v. Bell, 6 Pet. 68.)
The trust attempted to be created in favor of Sylvester, being merely to hold the premises for him, was a naked trust, not authorized by the statute, and, therefore, it is void ; but in such case the
Here, the testatrix clearly intended that' the entire estate, both legal and equitable, should be divested in the event of Sylvester’s death without having conveyed or devised it; and such a limitation of a fee upon a fee though void for repugnancy at common law (Van Horne v. Campbell, 100 N. Y. 287) is.now'authorized and the common-law rule no longer obtains. (Real Prop: Law, §§ 40, 206 ; Fowler Real Prop. Law, 42, 170, 193, 359, 360; Greyston v. Clark, 41 Hun, 125; Leggett v. Firth, 53 id. 152; affd., 132
It was, I think, intended by the enactment of the Revised Statutes to abolish all artificial or technical restraints of the common law with reference to the transfer of real property that were not expressly retained on the ground of public policy or expediency ; and that it was intended to alter the common-law rule that a fee or lesser estate could not be limited upon a fee appears from many provisions expressly providing for such limitation. (Real Prop. Law, §§ 22, 40, 42, 43, 48, 129, 130, 206; Fowler Real Prop. Law, 162; Lalor Real Prop. 62, 64, 65, 93, 94, 104.)
If there were greater adherence to the plain language of the statutes and less attention given to the common law our law with reference to the disposition of real property would be better understood, and there Would be less danger that the real intention of the testator would be defeated by an erroneous judicial construction of his will. It is unnecessary to decide whether Sylvester took a life estate or a fee for in either event the trusted took the remainder in trust for Ralph during his minority or for life. The trust for Ralph, though not expressed in the language of the statute, was unquestionably a valid trust to hold the premises and apply the rents and profits, at least, to his maintenance, education, and to fit him for some useful occupation at least during his minority. (Real Prop. Law, § 76, subd. 3; Kiah v. Grenier, 56 N. Y. 220, 225; Vernon v. Vernon, 53 id. 351; Bellinger v. Shafer, 2 Sandf. Ch. 293, 295; Donovan v. Van De Mark, 78 N. Y. 244; Hathaway v. Hathaway, 37 Hun, 265, 269.) In my opinion, it is clear that upon the death of Sylvester no interest descended to his heirs, but the entire legal estate vested immediately in the trustee for the purposes of the trust. (Real Prop. Law, § 80 ; Fisher v. Fields, 10 Johns. 495.)
This brings us to the consideration of other difficult questions. The defendant has fortified herself by conveyances from the heirs of the testatrix; and she claims that even if there were a valid trust for Ralph that it continued only during his minority, and that upon Ms attaining his majority the legal title reverted to the heirs of the testatrix who then became vested with both the legal and equitable title. If the trust was for Ralph’s life, and for that construction
The same party may be both the beneficiary of a trust and the remainderman. (Chapl. Express Trusts & Powers, § 359.) The
There is no residuary devise. The testatrix manifestly intended that the entire estate should pass by her will, and I think Ralph took a vested remainder in fee and in possession at the termination of the trust. (Real Prop. Law, § 210; Stevenson v. Lesley, 70 N. Y. 512, 517; Embury v. Sheldon, 68 id. 227, 234, 235 ; Whitney v. Whitney, 63 Hun, 59-63, 78-81; 43 N. Y. St. Repr. 841-843, 855-857; Olmstead v. Olmstead, 4 N. Y. 56.)
My conclusion is, therefore, that the trust is terminated and that the fee is now vested absolutely in Ralph, in whose favor judgment should be awarded accordingly.
Judgment ordered for defendant, with costs.