
    Cora L. Lewis, Respondent, v. Celia M. Howe and Others, Defendants, Impleaded with Harry M. Porter and Others, Appellants.
    
    
      A deed to trustees, effective to convey a life estate to persons entitled to the posséssion and rents —a remainder which vests without a conveyance by the trustees — effect ■ of d deed to' the life tenant by the remainderman — when an unsuccessful attempt to create a trust does not create a power in trust.
    
    Charles G. Case, being the owner in fee and in possession of certain premises, conveyed the same to Chesebro and Hull as • ‘ Trustees for Charles James Case, son of the said C. G. Case; and the lawful heirs of the said Charles James Case,” by a deed which provided that the grantor and his wife should retain possession of the premises during their lives and that Charles James Ciise or his wife and children should not take any rights under the trust thereby created until after the decease of the grantor and his wife. The deed further provided that “ in case the said Charles James Case should have a lawful child or lawful children living at the time of the decease of the said C. G. Case, the grantor herein, and at the- time of the decease of the present wife of said grantor, then the premises hereby conveyed are to vest in such child or children,- and it: is the intent of this Trust that the said Chesebro & Hull or their legal representatives shall convey the same to such child or children.”
    Charles James Case died1 before Charles G. Case, leaving surviving him Charles G. Case, 2d, his only son and heir at law. Thereafter Charles G. Case, 2d, his wife and the two trustees named in the deed delivered to Charles G. Case, the elder, a quitclaim deed of the property.
    
      Held, that although the deed to the trustees was not effective to convey any title to them, it did, under section 72 of the Real Property Law (Laws of 1896, chap. 547) convey a legal life estate in the property to the grantor and his wife;
    
      That upon the death oí Charles James Case, his son, Charles G. Case, 3d, took a vested remainder in the property and that no deed from the trustees was necessary to convey to him the legal title to such remainder;
    That whether or not Charles G. Case, 3d, took a vested remainder in the property upon the death of Charles James Case, his deed to Charles G. Case, the elder, was effectual to release whatever rights he had in the premises;
    That section 79 of the Real Property Law, providing that an unsuccessful attempt to create a trust shall in certain cases he valid as a power in trust, only applies where the instrument attempting to create the trust does not make a disposition of the rents or profits or of the real property to which the trust relates.
    Appeal by the defendants, Harry M. Porter and others, from a judgment of the Supreme Court in favor of the plaintiff, "entered in the office of the clerk of the county of Oswego on the 3d day of November, 1900, upon the decision of the court rendered after a trial at the Oswego Special Term.
    The deed referred to in the opinion contained the following recitals:
    
      “ It is understood and agreed that this grant is made in trust for the benefit of Charles James Case of Fulton and the lawful children of the said Charles James Case under the conditions and restrictions following to wit: should the said Charles J. Case die without children surviving him leaving a widow then the: premises aforesaid shall be subject to the use of said widow as long as she remains his widow, but it is understood that should the present wife of the said C. J. Case become a widow her use of the premises is to be held subject and in subordination to the dower right of the wife of the said Charles Gr. Case and if she the widow of said Charles James Case again marries the said premises shall become the property of the lawful heirs of said party of the first part and it is further understood that in case the said Charles James Case should have a lawful child or lawful children living at the time of the decease of the said C. Gr. Case the grantor herein & at the time of the decease of the present wife of said grantor then the premises hereby conveyed are to vest in such child or children and it is the intent of this Trust that the said Ohesebro & Hull or their legal representatives shall convey the same to such child or children that is to say after the decease of the said Charles Gr. Case & wife it is understood & agreed that the said Charles Gr. Case & wife shall retain full possession of said premises during their lives and it is not until after the decease of both the said Charles G. Case & his wife, that the said Charles J. Cáse or his wife or children are to take any rights under the trust hereby created.”
    
      O. B. Gould, for the appellants.
    
      Giles S. Piper, for the respondent.
    
      
      This opinion was handed down September, -1901.
    
   Rumsey, J.:

This action was brought for the determination of a claim to real property. Upon the trial at Special Term- the plaintiff had a judgment substantially for the relief demanded in the complaint. From that judgment this appeal is taken. It is claimed that neither the plaintiff nor her grantor had such possession as would entitle the plaintiff to maintain this action, but in the view we have taken of the case this question need not he determined. The facts are not disputed and are found as shortly as may be in the decision of the court at Special Term.

On the 29th of October, 1853, one Charles G. Case was the owner in fee and in possession of the premises which are the subject- of this action. On that day he made a deed to Chesbro and Hull,, as. “ Trustees for Charles James Case, son of the said C. G: Casey and the lawful heirs of the said Charles James. Case.”

By this deed it was among other things agreed that the grantor and his wife should retain full possession of the premises during their lives, and that it was not until after their decease that the said Charles James Case or his wife or children should take any rights under the trust therein created. It was further provided by the deed that at the death of the wife of the grantor the premises thereby conveyed should vest ” in the child or children of Charles-James Case then living. Charles James Case himself had no interest in the premises in any event. Charles James Case, the son, died before the 20th of May, 1874, leaving Charles G.. Case, 2d, his only son and heir at law. On the 20th day of May, 1874, Charles G. Cáse, 2d, and his wife, with the two named in the deed as ■ trustees, delivered to Charles G. Case, the elder, a quitclaim deed of the property mentioned in the deed of October 29, 1853. Charles G. Case, the elder, died on the 9th day of December, 1875, leaving a widow. Charles G. Case, 2d, the grantor in the deed of May 20, 1874, was his grandchild and his only heir at law. By the will of Charles Gr. Case he gave the property in question to Mary .Juliette Porter. She died in 1892 leaving the defendants her heirs at law.

The plaintiff claims that although by the deed of October 29, 1853, the trustees named therein obtained no title to the premises, they had a power in trust requiring them to convey to Charles Gr. Case, 2d, after the death of his grandmother; that Charles Gr. Case, 2d, never had any title or interest in the premises and, therefore, his quitclaim deed to his grandfather made on the 20th of May, 1874, was void; that all of the interest of Charles G-. Case, 2d, was the right in equity to compel the trustees to execute the power in trust given to them by the deed of October 29,1853; that by a deed from Charles Gr. Case 2d, to the plaintiff made on the 1st day of February, 1899, the plaintiff obtained the legal title to these premises and, therefore, is the owner of them and entitled to maintain this action.

It must be assumed that the legal title which the plaintiff obtained came in some way from Charles Gr. Case, 2d. That title must have been the one he acquired as heir at law of his grandfather; but as by his will the grandfather devised his title to Mrs. Porter, the ancestor of the defendants, it is not plainly perceived just how any title descended to Charles Gr. Case, 2d, after the death of his grandmother ; but that is not very important in the consideration of this case. The important question is whether by the deed of tictober 29, 1853, any title whatever vested in Charles Gr. Case, 2d, so that after the death of his grandfather and his grandmother he would be the owner of the premises in question, and if such title did vest then, whether he was on the 20th day of May, 1874, when he conveyed to his grandfather, vested of any estate in the land which would pass by a quitclaim deed, and whether, if he was, the grandfather became the owner of whatever interest the grandson had.

It is held by the learned justice who decided this case that by the deed of 1853 the trustees took no right, title or interest in the land. That necessarily follows from 1 Bevised Statutes, 728 (§ 49), Beal Property Law (Laws of 1896, chap. 547, §§ 72, 73), because the trustee had no right of possession, nor to the rents and profits. (Seidelbach v. Knaggs, 44 App. Div. 169; affd., 167 N. Y. 585.) But although the trustees took no title to this property, it does not follow that the deed was’nót. sufficient to pass the title "to somebody. By section 72 of the Beal Property Law, which was formerly section ' 47 of that part of the Be vised Statutes- treating of uses, and trusts (1 B. S. 727)," it i's provided that every pers'on who by virtue of any grant is entitled to the actual possession of real property and to the receipt of the rents and profits thereof in law or-in equity,, shall be deemed to have á legal estate therein of .the same quality and duration and subject to the same conditions as his beneficial interest, so that if, by the deed of 1853, any person became entitled to the rents and profits of the premises therein by virtue of that deed, he undoubtedly had the legal estate to the same extent. That deed gave to the trustees .no right to take the rents ¡and profits of the real estate, nor. was the trust one which was - valid under what was then- section 55 of the Law of Uses and Trusts (1 B. S." 728), and is now section 76 of the Beal Property Laiv; therefore, the trustee could in no event take the title to the property mentioned in the deed. It is claimed, however, that the trust created by the deed of October 29, .1853, being valid as a power under section 79 -of the Beal Property Law, the land must' remain in or descend to the persons otherwise entitled subject to the execution of the power, but necessarily that provision of section 79 only applies to a case where the deed attempting to create a trust does not make a disposition of the rents and' profits, or-of the real property to which the trust relates. If it does make a disposition of that property, then, under section 72 above cited,, the title vests in the person who is entitled to the rents and profits. By the' deed of 1853 it is seen that the grantor and his wife were to retain the full possession of the • premises during their lives. Undoubtedly the legal effect of that was that they should have a legal estate therein for their lives.

It further appears that if Charles G. Case left a child or children him surviving at the time of the decease of the older Charles G. Case and his wife, the premises conveyed by the deed were to vest ” in that child. Charles G. Case died before the 20th day of May, 1874. Whoever was then Ms .child, if he had one, became necessarily the person in whom this property was to vest by this. deed. That person was Charles G. Case, 2d. By the express terms of the deed he was the person in whom, if living, the property should vest at the death of his grandfather and grandmother. The word “ vest” was effectual to give to him the property.- He became the owner of it- by the use of that word. (28 Am. & Eng. Ency. of Law, 442; Bouv. L. Diet. tit. “Vest.”) Ho deed of anybody was necessary to give to him the legal title because by the express terms of that deed the property vested in him. He became entitled to it and to the rents and profits immediately after the death of his grandparents, and the necessary effect under the provisions of section 72 of the Beal Property Law was to give him the legal estate. After his father died he was the person in being who would have the immediate right to possession of the property on the determination of the life estate of his grandfather and grandmother. Therefore, his remainder was vested (1 B. S. 723, § 13, Beal Prop. Law, § 30) so that on the 20th day of May, 1874, Charles G. Case had a vested remainder in that property under the deed of October 29, 1853. But it is said that as by the terms of the deed the trustees were to convey to whatever child should be living after the death of the owners of the life estate, no title vested in them until such time as the conveyance was made, and to establish that proposition the case of Townshend v. Frommer (125 N. Y. 446) was cited. It is quite true that it was held in that case, under a deed containing provisions for the disposition of the fee to persons who were not ascertainable until after the •death of the owner of the life estate, that no interest passed to the person entitled until the actual conveyance of the estate. But that is not the general rule in such cases.

In Compbell v. Stokes (142 N. Y. 23) the deed directed the executors of the testator to divide his residuary estate into as many shares as he had children, to be held in trust for the child for life, and then directed that upon the death of the beneficiary the executors should -convey, transfer, pay over and deliver the share to his or her living issue, if he had any surviving; in that case it was held that the issue of any child of the testator living at his death took a vested remainder in the share held in trust for the parent subject to open and let in after-born children, and that the vesting of their interest did not await the exercise by the trustees of their power to transfer, convey, etc., but they took as remaindermen independent of the power.

The chief judge in this case laid down the general rule that under such provision the issue of any child of the testator living at his death took under the will a vested remainder in the share held in trust for the parent if living, subject to open and let in after-born children and to be divested by their death before the death of the parent. It was held that such was the general rule, and the learned chief judge distinguished the case of Townshend, v. Frommer (supra), because, he said, the case was peculiar and anomalous, but he said further that it did not affect the general rule. Applying the rule of that case to the case at bar, it seems quite clear that the effect of this deed was to give a vested remainder to Charles G. Case, 2d. By the terms of the statute that vested remainder was alienable in the same manner as an estate in possession. .(1 R. S. 725, § 35, Beal Prop. Law, § 49.) Therefore, on the 20th day of May, 1874, when Charles G. Case, 2d. executed this deed to his grandfather, he had a vested remainder which he might dispose of, and all of his interest passed by that deed to his grandfather, who. thereupon became not only the owner of the fee which by the deed of October 29,1853, had been vested in Charles G.' Case, 2d, as he was already the owner of the life estate. When he died- thereafter, in 1875, he had the remainder in fee of this land, after his wife should have died. That remainder passed by his will to Mrs. Porter, and became a vested remainder in her to take effect in possession after the death of the widow of Charles G. Casé, the elder. Such a remainder is, by the statute, descendible ” like an estate in possession. Therefore, when Mrs. Porter died, this remainder descended to her heirs, the defendants- and they had an estate in fee in possession after the death of the widow.

But although it may be that Charles G. Case,' 2d, had not such an interest under the deed of 1853 as passed by his (conveyance to his grandfather onv the 20tli day of May,. 1874, yet, undoubtedly, he did, on the date last named, have some sort of an interest in that land, whether it was a contingent remainder or a right in equity to compel the performance by the trustees of the conveyance to him -of the premises. Whatever that right was, it was released by the deed to his grandfather on the 20th day of May, 1874, and as at that time his grandfather was actually in possession of the land by-virtue of the life- estate reserved to him, within the case of Miller v. Fmans (19 N. Y. 384) the deed of Charles G. Case, 2d, was sufficient to vest his grandfather with whatever right he had, so^ that under any circumstances, after the execution of that deed, the-grandfather had the entire estate which had belonged to Charles G. Case, 2d. But whether, therefore, we conclude that by this deed of May 20, 1874, there was an actual conveyance of an interest from Charles G. Case, 2d, to his grandfather, or whether that deed sim.ply operated to release the rights of Charles G. Case, 2d, in any event the grandfather was, at the time of his death, the owner of the entire estate in the land, and his interest passed to Mrs. Porter by his will, and, therefore, the plaintiff has no interest which would entitle her to maintain this action.

This conclusion necessarily disposes of the case and requires that judgment should be reversed. Ho different result can be reached upon a new trial, and judgment should be ordered for the defendant, with costs.

All concurred.

Judgment reversed, with costs.  