17 N.J. Eq. 13 | New York Court of Chancery | 1864
The testator died on the fourth of July, 1830. On the twenty-ninth of May, 1832, the executor exhibited his final account for settlement and allowance, by which it appears that there remained in his hands a net balance of $397.68. By deed bearing date on the twenty-seventh of March, 1833, Nathan Park, for the consideration of $400, conveyed to Jonathan A. Park, the executor, a house and two lots of land, containing about sixteen acres. The deed itself does not specify the purpose of the trust, but it furnishes satisfactory evidence that it was taken by the grantee, not for his own benefit, but in trust for the estate of his testator. The conveyance is made to him, not in his individual, but in his representative capacity, by the name and description of Jonathan A. Park, executor of the last will and testament of John Bolason, deceased. The consideration is acknowledged to have been paid by him in his capacity of executor. The conveyance is to him “as executor aforesaid, or to his lawful representatives as such.” The
The deed, by its terms, conveys only an estate for life. The conveyance is to the grantee and his lawful representatives, not to his heirs. Littleton, § 1; 1 Sheppard’s Touch. 101-2; 4 Kent’s Com. 5; Kearney v. Macomb, 1 C. E. Green 189.
The application of the principle, that in a common law conveyance, the use of the word “heirs” is necessary to create an estate in fee, is not affected by the circumstance that the conveyance is made in trust, and that a less estate will not be sufficient to. satisfy the trust. The language of Chief Justice Kent, in Fisher v. Fields, 10 Johns. R. 505, is
Jonathan A. Park, the executor, to whom the legal title was conveyed, will be declared to have been seized of the land as trustee, for the purposes specified in the will; and the land will be disposed of, and the proceeds applied as though the trusts were expressed in the deed. The trustee having died without executing the power, the trust survives, and equity will decree its due execution by a sale of the estate for the specified trust. 2 Story’s Eq. Jur., § 1061.
Jonathan P. Eolason, one of the legatees under the will of his father, of an equal share with the other children in the trust estate, has become the owner in his own right of a part of the land, having purchased the legal title from a part of the heirs of Jonathan A. Park, the grantee. But he cannot thereby defeat the equitable title of the cestuis que trust, for it is obvious from his answer that he purchased with
There is another principle equally fatal to his exclusive title to the shares purchased by him. Where two or more persons having an interest in lands claim under an imperfect title, and one of them buys in the outstanding title, such purchase will enure to the common benefit, upon contribution made to repay the purchase money. “ Where,” says Chancellor Kent, “ two devisees are in possession under an imperfect title, derived from their common ancestor, it is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject created, that' one of them should bo able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself.” Van Horne v. Fondo, 5 Johns. Ch. R. 407; Rothwell v. Dewees, 2 Black's R. 618.
Hor can he claim any contribution for the price paid for the legal title from those interested with Him in the equitable estate. The title purchased by him has in no wise enured to the benefit of their estate.
The complainants are entitled to the relief prayed for, and it will be decreed accordingly.