25 Barb. 81 | N.Y. Sup. Ct. | 1857
The deeds in these cases were executed by the acting (and alleged to be the legitimate)
It was decided by the court of appeals, in Leggett v. Perkins,, (2 Comst. 297,) that the devises in the will of Gerardus Post to, or in favor of, his daughters, Mrs. Leggett and Mrs. Barber, during their respective lives, were valid, and vested the legal estate in the trustees. The objection to the devises was that the trustees were directed to pay over to (and not, in the words of the revised statutes, apply to the use of,) the daughters the rents, interest or net income of the lands devised, or subsequently to be purchased ; and it ivas also supposed that as there was no direct, devise of the real estate to the trustees they did not take the legal fee. The court decided that there was no substantial difference between the direction to pay over the income, and the statutory requisition to apply it, and that the authority to the trustees to receive and pay over the rents or net income gave to them, by implication, the legal estate, within the principle established in the case of Brewster v. Striker, (2 Comst. 19.) I was a member of that court when Leggett v. Perkins was decided, and concurred with Judges Bronson and •Jewett, against the opinion of the majority. And I have entertained serious doubts as to the accuracy of the decision in Brewster v. Striker. There are no very cogent reasons, however, (such as were alluded to by Judge Harris in Baker v. Lorillard, 4 Comst. 261,) for overruling those decisions in the court where they were rendered, and they must be considered— especially by inferior tribunals—as the settled law.
It was contended by the counsel for the defendants that the power to sell the testator’s lands was given to the executors, in
In the case under consideration the sole acting, and so far as is indicated by the papers, the then sole surviving, trustee (Mayor Woodhull) resigned his office, and his resignation was accepted by this court, and the plaintiff, William H. Leggett, was appointed in his place, and of course with the same powers. The proceedings, it is true, were not very formal, but they were substantially effective.
The lands in question had been confessedly legally sold by Woodhull, under the general power given in the ninth clause of the will, “ to sell the testator’s estate.” He had secured the purchase money by a mortgage on the real estate sold, pursuant to a direction in the fifth clause, and had, Under the same clause, subsequently purchased such real estate, in part for the benefit of the testator’s daughters, There had not been any division of the proceeds when the real estate was originally sold, nor was the subsequent purchase solely for the daughters,"but there was afterwards a partition between the testator’s children, to which the acting trustee was a party. And after that, and until his resignation, he held the lands in question as their shares, and as I consider, under the fifth clause of the will. If so, he, before such resignation, and the plaintiff William H. Leggett afterwards, had the power to sell such lands, with the approbation of this court. The sales were made by such substituted trustee with the required approbation j and it seems to me that a deed from him alone would have conveyed a good title to the land. If so, the facts that it had been sanctioned by an act of the legislature, and that others had joined with him in the conveyance, would not, surely, vitiate or impair the title.
If the conveyances by the ladies entitled to the income of the lands in question, and their husbands, would be simply or at all conveyances of their income, and without express legislative
Then as to the children of Mrs. Post and Mrs. Barber. As those in esse were minors, the legislature had confessedly the power to authorize the conversion of their real estate into personal property, if satisfied, (as it no doubt was,) that such change would be for their benefit. Those children were, at the time when the act was passed, seised of the entire remainder. That remainder, it is true, was subject to open in favor of after-born children of their mothers, but as to those children there was not, of course, any vested interest. All that could be claimed in their behalf was that they should receive their portion of the proceeds, and of that they would not be deprived by the act, or the procedure under it. I am inclined to agree with Judge Harris, who gave the leading opinion in Baker v. Lorillard, (4 Comst. 266, 267,) that children in being who have a vested remainder in fee subject to open to let in after born children of the same parent, may be regarded as holding the legal estate not only for their own benefit but as trustees of such after-born children; and that a sale may carry the interest of the after-born children as well as of those in being at the time. Especially is this true if the sale is expressly
As the defendants would, in my opinion, acquire a valid title to the premises purchased by them, under the proposed conveyances, they should be required to complete their respective purchases.
ifo costs should be awarded.
S. B. Strong, Birdseye and Emott, Justices.]