25 N.J. Eq. 122 | New York Court of Chancery | 1874
Goline Doremus, who died about April 1st, 1873, by his will gave and devised .to his son Charles the use and occupancy of a certain lot of about half an acre of land in Bloomfield township, in the county of Essex, with the buildings and improvements thereon, during Charles’ natural life, free and clear from all encumbrances, and after Charles’ death, to the surviving children of Charles, in equal shares. The will also provides that the land may, nevertheless, be sold and conveyed in the lifetime of Charles, by his consent in writing, .at the discretion of the executors, and that if the sale should
The claim to relief is based on the ground that the power to consent to a sale by the executors, is a power appendant, and that the judgment against Charles, works an extinguishment of it. The bill, however, alleges that the executors can make a good title notwithstanding the judgment, and its object is, obviously, not to prevent a cloud upon the title to be-acquired under the judgment and execution, but to prevent the executors from selling the property under the power given by the will, in order that the complainant may thus, by sale-of the life estate, be enabled to collect the amount due on his-judgment. Why should the court do this ? The trust did not proceed from the debtor, nor is any fraud alleged. The-bill does not seek to reach any equitable interest of the debtor, but merely invokes the restraining power of the court in aid of the levy made upon a legal estate, not with a view -to removing a fraudulent encumbrance, or vacating a fraudulent conveyance, but to prevent the exercise of a power by the executors, a power with which they were invested by the-testator for the purpose of protecting his bounty, and securing R to the objects for which it was bestowed, and to the persons-whom alone he intended to benefit by it. The testator, in-making this provision for sale, probably had in view the very contingency now presented — the effort of a creditor of Charles-to subject the land to the payment of his debt. It is manifest that he intended to secure the property, or the proceeds of it, to the support of Charles and his family, beyond such contingency. If the complainant’s judgment has indeed deprived Charles of the power to consent, there is no occasion for this suit. Said Lord Eldon, in Thorpe v. Goodall, 17 Ves. 388, where a bill was filed,by the assignees of a bankrupt, who was seized for life, with a general power of appointment, with remainder in default of appointment to the heirs of his body, to compel him to execute the power of appoint
Nor is the power to consent to a sale extinguished in all eases where the donee of the power is the life tenant, even by the absolute alienation by him of his life estate. Warburton v. Farm, 16 Sim. 625; Alexander v. Mills, L. R. 6 Chan. App. 124; see also, Long v. Rankin, 2 Sugd. on Pow. (3d Am. ed.) Appx. 513; Walmesly v. Butterworth, Coote on Mortgages, App. 573; Tyrrell v. Marsh, 3 Bing. 31; Davies v. Bush, McCl. & Yo. 57; Jones v. Winwood, 10 Sim. 150; Ren. v. Bulkeley, Doug. 292.
But, is the complainant’s judgment at law, in this case, to be regarded as an alienation of his life estate ? Said Lord Tenterden in Doe d. Wigan v. Jones, 10 B. & C. 459, “It has been established ever since the time of Lord Coke, that when a power is executed, the person taking under it takes under him who created the power, and not under him who executes it. The only exceptions are where the person executing the power has granted a lease or any other interest which he may do by virtue of his estate, for then he is not allowed to defeat his own act. But suffering a judgment is not within the exception as an act done by the party, for it is considered as a proceeding in invitum, and therefore, falls within the rule.” In that case, an estate had been conveyed to such uses as a person should by deed appoint, and in the meantime, to the use of himself for life, and afterwards a judgment was recovered against him, and after the entry of the judgment, he mortgaged the property, appointing the use for five hundred years, and after the execution of that deed,
In Doe d. Mitchinson v. Carter, 8 T. R. 57, where a lessee covenanted not to alien or transfer away his lease, and after-wards acknowledged a judgment on which the lease was taken in execution and sold, it was held that this sale was not a forfeiture of the lease. In that case, the lessor brought an ejectment against the purchaser of the lease. Lord Kenyon said there was a difference between those acts which a party does voluntarily, and those which pass in invitum; that judgments in contemplation of law always pass in invitum, and that that was not an alienation within the meaning of the covenant.
There is no equitable ground in the bill on which this court can be asked to extend its support to the complainant’s lien. On the other hand, it is rather its duty to give effect to the intention of the testator in the devise under consideration. The power of sale was not given for the benefit of Charles alone, but for the benefit of his family also. It is evident that in the gift of the use and occupancy of the property the testator had the same design and sought to effect the same object. It may be remarked that this court will sometimes control the extinguishment of such a power. In Cunynghame v. Thurlow, reported in a note in 1 Russ. & Myl. 431, where a father, having a fund for life with remainder to his children in such shares as he should appoint, and in default of appointment to the children equally, made a release of the power for the purpose of vesting in himself the share of a child who had died, and whose executor and legatee he was, the court refused to give present effect to the release so far as it operated to vest such share in him, although the power was, in fact, extinguished by the release. And as a general proposition, if the duty of the donee requires him to exercise a power at a future time, he cannot extinguish it by a release. Williams on Meal JProp. 256.
This case differs essentially from one where the gift is of a life estate, with a power to the life tenant to compel a sale by
To grant the prayer of this bill would be to defeat the manifest intention of the testator, as well by depriving Charles and his family of all use and occupation of the property, during his lifetime, and so of all benefit of the devise, during his life, as by depriving the executors of the power conferred by the testator for the protection of the subject of his bounty, and to secure it to its appropriate objects; and it would be to deprive those in remainder, as well as Charles, of the benefit of the exercise of that power.
The judgment creditor has obtained a lieu on such estate, and only on such estate, as well as to tenure as otherwise, as by the provisions of the will has been created. If the estate be uncertain, ho has no equity to call on this court to add certainty to it. If its tenure be weak, he has no equity to call on this court to strengthen it.
If, as before remarked, the power to consent is extinguished by the judgment, then no relief is needed in the premises. If it be not so extinguished, there is no case made by the bill to induce this court to exercise its power, under the circumstances, to prevent a sale by the executors.
The injunction will be dissolved and the bill dismissed, with costs.