130 N.Y.S. 571 | N.Y. App. Div. | 1911
Lead Opinion
This is an appeal from a judgment at Special Term requiring the defendants Mary R. Washburn and Joseph Walker, Jr., as executrix and executor of Emma Jane Richardson, deceased, to account to plaintiff and other heirs at law of Thomas W. McLeay, deceased, for the proceeds of the sale by the said Emma Jane Richardson, during her lifetime, of real estate formerly belonging to said Thomas W. McLeay, deceased, and for moneys paid to said Emma Jane Richardson, in her lifetime, by the' city of New York for property taken in condemnation proceedings, and which formerly belonged to said Thomas W. McLeay. '
Tliere is no dispute as to the facts, and the only legal question involved is as to’ the construction to be given to the
“In the Name of- God, Amen. ■
“I, Thomas W. McLeay of the City of Hew York] of the age of years and' upwards and being of sound mind and memory but aware of the uncertainty of life, do makje, publish and declare this my last will and testament in manner following, that is to say: •
“ First. I give, bequeath and 'devise 'to my dearly beloved wife Emma Jane McLeay all my personal estate of every! nature and.kind and wheresoever situated to have and to hold to her own use forever.
“Second. I give, bequeath and devise all my real estate of what nature or kind soever, and wheresoever situated to • ' . i my said wife, to be used and enjoyed by her during the term of her natural life, and from and immediately aft'pr her death one' house and lot such. as iny said Wife may ichoose and have designated in writing to Mary Eosenia Doughty, and to her heirs and assigns to have and to hold' to her or their .own use-forever and all the . rest and residue of my real estate or such parts or portions thereof as are not previously sold by my ’said wife to such of my brothers and sisters’ as shall be living at the time of her death share and share alike .if more than one, and to their heirs and assigns tó have and to hold to their own use forever;.and I authorize and give my said wife hereinafter appointed executrix of this miy last will? ⅛11 power to sell and dispose of any or all; of my real estate, at public or private sale, at such time or timéis and upon such terms and in such manner as to her shall! seem meet and to give good and valid deeds therefor and 1, also give lier as full power and authority to. manage said real estate as I myself have, and I also authorize her, at her discretion,, to give to any or all of my said brothers and sisters such sum sums from the principal of my estate, as she shall deem best, or desire and I hereby appoint my said wife Emma Jane McLeay*787 sole executrix of this my last will and testament hereby revoking all former wills by me made.”
The widow qualified as executrix. She went into possession of the real estate and sold it all during her lifetime, except a parcel which was taken by the city of New York in a condemnation proceeding, and the award for which was paid to her. She never, in form, designated any house and lot to go to Mary Rosenia Doughty under the terms of her husband’s will, but some years after she had sold all of the real estate she repurchased one of the houses and. lots and then conveyed it, for a nominal consideration, to the said Mary Rosenia Doughty, then Mary Rosenia Washburn. This has been held by the judgment appealed from to have been an ineffectual attempt to exercise the power of appointment given by the will, and the executors are required to account for this house and lot, or its value, and for the rents thereof since the death of Emma Jane Richardson, deceased.
The appellants, executrix-and executor of Emma Jane Richardson, deceased, contend that under her husband’s, will their testatrix took an estate in the real estate in fee simple abso-' lute, subject, however, to ■ the executory devise to the surviving brothers and sisters of so much of the real estate as to - which she failed to exercise her power of disposition.
The respondents, on the other hand, contend (and so it was held at Special Term) that the said testatrix took only a fife estate' under the will, and that as to the proceeds of any real estate sold by her the testator, Thomas W. McLeay, died intestate. It is apparent upon the face of the will that the desire which was uppermost in the mind of the testator was that the ■ whole management and disposition of the real estate should be left to his wife to deal with as she saw fit. To those members of his family who - might survive her he left only what she might not see fit to dispose of in her lifetime. The main features of the will, so- far as it concerns the real estate (with which alone we are now concerned), are: (1) The gift of a fife estate to his wife; (2) the grant to her of an unrestricted 'power of sale; (3) the gift over, to the brothers and sisters who might survive her, of only so much of the real estate as the wife shall not have sold in her lifetime; (4) the a nee
The appellants’ contention rests upon the provision^ of the Revised Statutes which were in force when the testator died and which read as follows: “Where an absolute power of disposition, not accompanied by any trust, shall be given to •the owner of a particular estate, for life or years, such; estate shall be changed.into a fee, absolute in respect to the rights Of creditors'and purchasers, but subject to any future jestates limited thereon, in case the power should not be executed, or the lands should not be sold for the satisfaction of debts.” (R. S. pt., 2, chap. 1, tit. 2, § 81.) I
. “In all cases, where such power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee.” (Id. § 83.) ■ . '
“Every power of disposition shall be deemed absolute by . means of which the grantee is enabled in his lifetime to dispose, of the entire fee for his own benefit.” (Id. § 85.) ¡ ' .
These provisions are now incorporated in the Real’Property Law (Consol. Laws, chap. 50; Laws of 1909, chajp. 52) as sections 119, 151 and 153. These sections have furnished the theme for many learned and. interesting opinions, toj most of which,. however, it will not be necessary to refer at present. Our duty is to ascertain whether or not the! -present case falls within their provisions. We have in the first place a life estate in the widow. Nextwe find her invested with an absolute power of disposition— absolute because it-, is not. subject to the consent of any other person as in Ackerman v. Gorton (67 N. Y. 63), nor so restricted that it could be exercised only for a particular purpose as. in Terry v. Wiggins (47 N. Y. 512) and Hasbrouck v. Knoblauch (130 App.
The judgment appealed from must, therefore, be reversed and judgment entered in favor of the appellants dismissing the complaint and construing the will in accordance with the view hereinbefore expressed, with costs in this court and the court below to said appellants Mary E. Washburn individually, and Mary E. Washburn as executrix, and Joseph Walker, Jr.., as executor of Emma J. Eichardson, deceased, against the plaintiff.
Dissenting Opinion
(dissenting):
This is an. action for the construction of the will of Thomas W. McLeay, which was duly admitted to probate by the surrogate of the county of New York, as a will of real and personal property, on the 8th day of May, 1865, and upon which letters testamentary were duly issued to Emma Jane' McLeay, the widow of the testator and the executrix named in his will. The body of the will is as follows:
“In the Name of G-od, Amen.
“ I, Thomas W. McLeay of the City of New York, of the age of years and upwards and being ¡of sound mind and memory but aware of the uncertainty of life, do make, publish and declare this my last will and testament in manner following, that is to say:
“First. I give, bequeath and devise to my dearly beloved wife Emma Jane McLeay all my personal estate of - every nature and kind and wheresoever situated to have and to hold to her own use forever. .
“ Second. I give, bequeath and devise all my real estate of what nature or kind soever, and wheresoever situated to my said wife, to be used and enjoyed by her during the term of her natural life, and from and immediately after her death one house and lot such as my said wife may choose and have desig*792 nated in writing to' Mary Eosenia Doughty, and to her heirs- and assigns to have and to hold to her' or their own usé forever and all the rest and residue of my real estate or such ¡parts or portions thereof as are not previously sold by my said! wife to such of my brothers and sisters as shall, be living at ihe time of her death share and share alike if more than one[ and to their heirs and assigns- to have and to hold forever; and I authorize and give my said to their own use wife hereinafter appointed executrix of this my last will, full power to sell and dispose of any or all of my real estate, a-; public or private sale, at such time or times and upon such terms and¡ in such ■manner as to her shall seem meet and té give good and valid deeds therefor and I also give her as full power and authority to manage said real estate as I myself hajve, and I also authorize 1 her, at her discretion, to give to any or. all of my said brothers and sisters such sum cr sums from the principal of my. estate,, as she shall deem bist, or desire and I hereby appoint my said wife Emma Jane McLeay' sole executrix of this my last will and' testament hereby revoking all former wills by me made. In Wi ness Whereof,' I have hereunto set my hand and seal this twenty-fifth j day of April in the year óf our Lord one thousand eight hundred and sixty-one.” J j
The questions presented for decision arisje under the provisions of the' will- with respect to the devise of the real estate. ■
The widow individually and as executrix, in the year 1866, sold and conveyed three parcels' of real estáte of which the testator died seized. In the year 1810 the city of New York. acquired by condemnation proceedings for Lexington avenue, part of the remaining ! the opening of ands left by the .testator, for'which an award of $27,026 was made: to the “estate of ” the testator,, which was paid to the executrix and receipted for by her in that capacity. On | the 11th j day of February, 1880, the widow,- as executrix, so|Ld and conveyed the two remaining parcels of land of which ¡the testator died seized. She thereafter and on the 30th day of Aprl repurchased in her own name individually part of thi erty so conveyed by her in the year 1880, and 1892, s prop-on the twenty-
By the interlocutory judgment, from which the appeal is taken, it is adjudged, pursuant to the decision, , that the widow of the testator merely took a life estate in the real property and in the proceeds thereof, and that .the brothers and sisters of the testator took a vested remainder in the real property, but that, inasmuch as they all predeceased the life tenant, the remainder in the real estate and in the proceeds of the sales and condemnation, which was limited upon the life estate of the widow therein, was undisposed of and upon the death of the widow passed to the descendants of the deceased brothers and sisters of the testator, as his heirs at law, and that they are entitled to have the executor and executrix of the deceased executrix of the testator account therefor, together with the rents, income and profits thereof since the death of the fife tenant. The interlocutory .j udgment also ad j udges that the power of appointment given by the will to said Emma Jane McLeay, who at the time of her death was Emma Jane Richardson, to appoint a house and lot to Mary Rosenia Doughty was a power to be exercised by will and not by deed, and could not be exercised by deed not referring to the power.
The respondents contend, in accordance with the decision on the trial, that the widow took only a life estate in the real property, and that the proceeds of the sale of the real property, as well as the proceeds of that taken by condemnation, were held by her as life tenant, and that the brothers and sisters of the testator took a vested remainder therein, subject to be divested by their deaths, during the life of the fife tenant, and that on their deaths during her lifetime their interests became divested and the real estate i’emained undisposed of by the will
. If the contention of the appellants should be sustained, it is manifest that the' widow of the testator, having title ,to the property, was unrestricted with respect to her.disposition of it, and that it was competent for her to repurchase andj convey part of.it to said Mary R' Doughty. We are not, however, concerned with the validity of the title acquired under that conveyance. We are only required to construe the will. It is quite plain that until the exercise of the power of appointment conferred upon the widow or executrix unjier the will said Mary R. Doughty acquired no interest in the], real property of the , testator, and we think that power was never exjercised. The .authority was not to sell- and convey the real estate and out of the entire proceeds, or the proceeds of one parcel,j tp purchase real estate for said Mary R. Doughty] but to designate and appoint á house and lot left by the testator- for hen If it could be exercised with respect to "the proceeds' of the sale of a particular house and lot, a question which it is noi necessary to decide, there- is nothing here to shoy- that the action taken by the widow was intended as an exercise of the power óf appointment. ■ !
I am of. opinion that the learned Special Tprm properly construed the will., Whether the will was drawn by a layyer or a layman, its author apparently fully appreciated the | difference between giving property outright and giving a lifé estate therein, and by express terms the personal property wjap disposed of absolutely, and only a life use in the real estate was given-to the. widow. Moreover, if' the testator..intended to devise the .real estate in fee to his widow it would havlelbeen ■unnecessary for him to have conferred a power of appointment on her with respect to one of thó houses and lots for said Mary R. Doughty. Why would the testator have conferred authority in express terms on his widow to manage the real estate if he intended to give the4ame to her .in fee? Why would he have deemed it necessary to authorize her to sell the real estate at
The entire argument of the appellants is based on the clause, “or such 'parts or portions thereof as are not previously sold by my said wife,” which it is claimed excepted from the devise to his brothers and sisters such real estate as she might see fit
Appeals has held gives merely a life estate (Matter of McDougall, 141 N. Y. 21; see, also, Ackerman v. Gorton, 67 id. 63), a fee give no scope to was devised, for such a construction would many of the provisions of the will. Clearly h life estáte only was devised in the first instance; but it is cohtended- tbit this I i i was enlarged into a fee by the unqualified power of sale and the provision with respect to use’and enjoyment. Thait ,argu-of titiéy2 of chapjtejr 1 of' tsections ⅛ and ment is based on sections 81 and 85 part 2 of the Revised Statutes, which are no-153 of the Real Property Law (Consol.'Laws, \chap. 50Í; Laws of 1909, chap; 52).
Said section 149 provides as follows: “WhenRestate fojr life or years is changed into afee. Where an absolute power of disposition, not accompanied by a trust, is given ⅜ the! qwner of a particular estate for life or for years, such 'estatá is cHánged into a fee absolute in respect to the rights of creditors] purchasers and incumbrancers, but subject to any future 'estates limited thereon in. case the power of absolute disposition is not
Said section 153 provides as follows: “When power of disposition absolute. ' Every power of disposition by means of which the grantee is enabled in his lifetime to dispose of the entire fee for his own benefit is deemed absolute.”
These statutory provisions shed but little light on the question presented for decision, for they have long since been confined to cases in which the power of disposition is for the sole benefit of the person upon whom, the power is conferred. (Coleman v. Beach, 97 N. Y. 545; Farmers’ Loan & Trust Co. v. Kip, 192 id. 266, 277.) We, therefore, are required to ascertain the intent of the testator as in ordinary casés, and such intent, when ascertained, governs. If the testator intended that his widow should not be at liberty to enlarge her estate by exercising the power of sale, but that if she exercised the power of sale she would have only a life use in the proceeds of the sale, and that the principal would go to the residuary devisees the same as if the power had not been exercised, then the authority conferred upon the widow of the testator, either individually or as executrix, to sell and convey the real estate was not an absolute power of sale within the purview of the statutory provisions already quoted. Whether a power of sale is absolute, within these statutory provisions is not to be determined by an inquiry as to whether if it be exercised good title passes, hut by considering who take or are interested in the proceeds of the sale. I am of opinion that the power of disposition, although not accompanied by a formal express trust, was accompanied by a trust within the purview of the statute, for if the testator intended that the interest of the remaindermen should attach to the proceeds of the sale, then his widow held the proceeds of the sale for her own use to be sure as to the income, but in a sense in trust for the remaindermen, for the life tenant becomes a trustee for them (Seaward v. Davis, 198 N. Y. 415, 420; Leggett v. Stevens, 185 id. 70, 76; Weinstein v. Weber, 58 App. Div. 112; 78 id. 645; affd., 178 N. Y. 94; Matter of Hamlin, 141 App. Div. 318), and it is upon that theory that her personal representatives are called upon to account. The statutory definition of ah absolute power of disposition sheds light on what
I, therefore, vote for affirmance. ' '
Judgment.reversed and judgment ordered as directed in opinion. Order to be settled on notice. ! ! '