
    Germond vs. Jones.
    Where A. devised and bequeathed to B. all his real and personal property in trust to sell and dispose of the same, and out of the proceeds to pay debts and legacies, the residue to belong to B.; but the will contained no provision entitling the latter to the actual possession of the land, or authorizing him to receive the rents and profits: Held, that under the revised statutes, B. took no estate whatever in the land, and consequently his widow was not entitled to dower.
    The widow in this case sought to recover dower in a part of the land devised which the husband during his life had conveyed pursuant to the power; and at the trial she offered evidence that the testator died seised of other real estate of the value of $40,000, and of $7,000 worth of personal property: Held irrelevant, even if accompanied by proof that the husband’s residuary interest in the avails, after paying all debts and legacies, would have amounted to much more than the entire value of the land in which dower was claimed.
    The right of B. under the will in question was a mere power in trust, and on A.’s death the lands devised descended to the heirs, subject to the execution of the power.
    
      At common law, the estate would have passed to B. as trustee; but even then the widow would not have been entitled to dower, as she could not be dowable of a trust estate.
    Under 1 R. S. 722, § 47, 2d ed., the beneficial interest of a party in land is not to be deemed a legal estate, unless he be entitled both to the “ actual possession” and the receipt of the “ rents and profits.”
    An absolute power of disposition will only be deemed to carry a fee, within the provisions of the revised statutes, where the grantee of the power is authorized thereby to dispose of the estate for his own benefit; and not where creditors and legatees are to be paid out of the avails, though the grantee be entitled to the residue.
    A testator, so long as he violates no rule of law, may bestow his property on whom, and in what form he pleases; and hence, he may so dispose of his lands for the benefit of a particular person, as that the wife of the latter cannot be endowed thereof. Semble.
    
    Ejectment, tried before Cushman, C. Judge, at the Rensselaer circuit, in September, 1841. The plaintiff, as the widow of Smith Germond, deceased, claimed to recover dower in a farm of 108 acres of land in possession of the defendant, situate in Lansingburgh, Rensselaer county; and the question was, whether her husband acquired an estate of inheritance in the land by virtue of the will of his brother, Stephen Germond, who died seised in September, 1836, having in the preceding month made and published bis will in due form for passing real estate. The will of Stephen was as follows: “ First, I give and devise all my property and estate, both real and personal, wheresoever the same may be, to my brother Smith Germond of Lansingburgh, in trust, nevertheless to answer the intent and meaning of this my will, viz: it is my will that the said Smith Germond' shall, within a reasonable time after my decease, and within sufficient time to pay the legacies hereinafter mentioned and bequeathed, sell, dispose of and convey all my estate, both real and personal, at public auction or private sale, as he may deem proper, and out of the moneys arising from such sale of my said real and personal estate, first, to pay all my just debts, funeral charges, and the expense of settling my estate. Secondly, to pay,” &c., enumerating a great number of legacies to the relatives of the testator who" were particularly mentioned and provided for in the will. The legacies were, in general, payable within two years after the death of the testator, and amounted in the aggregate to nearly five thousand dollars. As to some of the legacies, the money was to be invested and the interest paid to a particular person for life, and then the principal sum was to go to others'. The testator then proceeded: “ Ninth, all the rest and residue of the moneys arising by the sale of my real and personal estate as aforesaid, 1 give and bequeath to my brother Smith Germond, for his own proper use and benefit forever. And whereas a great sacrifice of my real and personal estate may be made by a forced sale thereof within the times above mentioned for the payment of said legacies; now therefore, if the said Smith Germond can and shall pay in any other way than by the sale aforesaid, the said legacies above bequeathed, and the interest of the several sums ordered to be invested as aforesaid, then and in that case it is my will that the said Smith Germond should have such further time to sell and dispose of my said real and personal estate as he may at his discretion deem best calculated to avoid a sacrifice. If the said Smith Germond should die before he shall have sold and disposed of my said real estate, or any part or parts thereof, then it is my will that the executors of the said Smith Germond, or such of them as shall qualify as executors, and the survivors and survivor of them, shall sell, dispose and convey, as soon as conveniently may be after the death of the said Smith, all the real estate belonging to me which shall then remain unsold, and that the said executors of the said Smith hold the moneys arising by such sale and disposition thereof to the use, benefit and be-hoof of such person or persons, and in such proportion and in such manner as the said Smith Germond shall by his last will and testament appoint. And if the said Smith Germond shall make no such limitation or appointment by his last will, or if he shall die intestate, then it is my will that his executors or administrators, as the case may be, shall with all convenient speed, proceed to sell and dispose of my aforesaid real and personal estate, or so much thereof as remains unsold, and pay over the moneys arising by such sale, after paying and satisfying the legacies and bequests herein before mentioned if they or any of them remain unpaid, to my heirs, in the proportion of one to every female, and two to every male heir.” The testator appointed his brother, Smith Germond, and one John S. Fake, executors of the will.
    The testator died in September, 1836. Fake renounced, and Smith Germond proved the will and took letters testamentary in December, 1836. In April, 1840, Smith Germond conveyed the farm in question to the defendant in fee, for the consideration of ten thousand five hundred dollars. Smith Germond died in October, 1840, and his widow now claimed dower. The plaintiff offered to prove that Stephen Germond, the testator, died seized of real estate in Rensselaer county, besides the farm in question, of the value of forty thousand' dollars, and possessed of personal property of the value of seven thousand dollars. The judge rejected the evidence, and the plaintiff excepted. The judge decided that Smith Germond did not take such an estate in the farm by the will as would entitle the plaintiff to dower, and she could not recover. The plaintiff excepted, and now moved for a new trial on a bill of exceptions.
    
      D. Buel, jun., for the plaintiff,
    made the following points: 1. The plaintiff’s husband took an absolute estate in fee in the premises in question under the will of Stephen Germond, and the plaintiff is therefore entitled to dower therein. (1 R. S. 723, § 55, 2d ed.; Id. 724, § 67; Id. 722, § 47; Id. 726, § 83; Id. § 85; Hawley v. James, 16 Wend. 200, per Cowen, J.; Jackson v. Bull, 10 John. R. 20; Hawley v. James, 5 Paige, 455 ; Jackson v. De Lancy, 13 John. R. 552; Jackson v. Robins, 15 id. 169 ; S. C. 16 id. 537,588, by the Chancellor ; Helmer v. Shoemaker, 22 Wend. 137; 3 R. S. 589, reviser’s notes; Hitchcock v. Harrington, 6 John. R. 290; Collins v. Torry, 7 id. 278; Coles v. Coles, 15 id. 319; 4 Kent’s Com. 42,43.) 2. If the legatees under the will of Stephen Germond, or his creditors, have any right to subject the land devised to the payment of their claims, their remedy is in the court of chancery ; and their equities cannot be set up by the defendant in this suit in bar of the plaintiff’s claim of dower. (Johnson v. Fleet, 14 Wend. 179, per Nelson, J.; Jumel v. Jumel, 7 Paige, 595; Hawley v. James, 5 id. 458; 2 Story's Eq. § 790.) 3. The testimony offered by the plaintiff to show the value of the estate of Stephen Germond, was competent and should have been received. (Jackson v. Billinger, 18 Johns. R. 381; Fox v. Phelps, 17 Wend. 401; Swick v. Sears, 1 Hill, 17.)
    
      J. Pierson Sp M. T. Reynolds, for the defendant.
    The plaintiff’s husband was never seized of an estate of inheritance in the premises in question. He had a mere trust estate, in which his widow is not entitled to dower. (Caster v. Lorillard, 14 Wend. 314, 315, per Savage, Ch. J.; Godwin v. Winsmore, 2 Atk. 525.) 2. The title of the plaintiff’s husband was not dependent upon the quantity or value of the- estate left by Stephen Germond, and the evidence of its value was therefore properly rejected by the circuit judge.
   By the Court,

Bbonson, J.

In most of its features this appears to me to be a very plain case. The testator has devised all his property, real and personal, to his brother, Smith Germond, in trust to pay debts and legacies. This was a good express trust, or rather, power in trust, under our new code in relation to uses, trusts and powers. (1 R. S. 728, § 55, 56, 94.) At the common law, the estate would have passed to the trustee ; but even then his widow would riot have been entitled to dower. A woman is not dowable of a trust estate. But under our statute, Smith Germond took no estate whatever in the land. He had authority to sell, but was not empowered to receive the rents and profits; and in such a case the trust is nothing more than a power, and the land descends to the heir subject to the execution of the power. (Id. 729, § 56.) This disposes of the whole case. The estate descended to the heirs of the testator and rested' there until the title of the heirs was divested by the execution of the power, and then the estate, as to the farm in question, passed to the defendant. Smith Germond was never seized, and it follows as a necessary consequence that his widow cannot be entitled to dower.

We might stop here. But the course of the argument renders it necessary to consider the case more at large. It is said, that Smith Germond took a fee under the 47th section of the statute of uses and trusts. (1 R. S. 727.) But the answer is, that he was neither “ entitled to the actual possession,” nor to “ the receipt of the rents and profits” of the land; and both must concur before the beneficial interest of the party is turned into a legal estate.

At the common law, when an absolute power of disposition is added to the gift of a particular estate, such estate will be magnified into a fee. The cases on this subject are collected in Helmer v. Shoemaker, (22 Wend. 137.) And so it is under our statute. (1 R. S. 732, § 81.) But here there was no particular estate, for life or years, in Smith Germond, to be enlarged into a fee. He had nothing but a power. Still, the absolute power of disposition, although no estate is limited to the grantee of the power, will sometimes carry a fee. But that is only where the power is not accompanied by any trust.” (Id. § 81—3.) Here there was a trust to pay debts and legacies. And besides, the power of disposition is only deemed absolute when the grantee of the power is enabled “ to dispose of the entire fee for his own benefit.” (Id. 733, § 85.) Here creditors and legatees were to be paid out of the avails of the land.

It is said, that Smith Germond is both trustee and cestui que trust. But he has no trust or other estate in the land. He has nothing but a trust power to sell and apply the. proceeds of the land; and although he is entitled to a part of the proceeds, other persons are also entitled to a portion, and may compel the execution of the power. (Id. 734, § 94, 96.) If this was a beneficial power, in the execution of which no person was interested but the grantee, (Id. 732, § 79,) it would then carry a fee in the land. (Id 733, § 83, 85.) But I see no principle upon which any other power can be held to carry a fee.

The argument for the plaintiff turns mainly upon considerations which can have no legal influence upon the question. It is said that the testator left a large estate, and there was an offer to show that the property, real and personal, was worth nearly sixty thousand dollars. This proves nothing without going further and telling us what amount of debts was to be paid out of the proceeds of the property. But let it be assumed that the debts only amounted to a small sum, and that, after paying them and satisfying the other legacies, Smith Germond would be entitled to a large amount—say thirty, forty or fifty thousand dollars—as residuary legatee. The nature and quality of his estate or interest under the will does not depend upon the magnitude of his legacy, but upon the form and manner in which the estate or interest was created. It is wholly unimportant whether he is "to have five-sixths, or only one-sixth of the property. The question is, how does he take? Is he to have land, or money? If the fee of the land did not vest in him, his widow is not entitled to dower. Now, nothing can be more clear .than that the testator did not intend his brother should have the land. Smith Germond was to sell the property. If he died without selling, his personal representatives were to dispose of it; and from beginning to end the direction in the will is, to sell the property and convert it into money. The thing to be divided among the creditors and legatees, including Smith Germond, was not land, but money—the avails of the land. It is a familiar principle, that the intention of the testator, when not inconsistent with the rules of law, must be carried into effect; and the right of the owner to direct a sale of his land, and a distribution of the proceeds, is not forbidden by any law. As owner, he may give tire thing itself, or he may direct that it be converted into money and go to the beneficiary in that form.

It was intimated on the argument, that the will was contrived with reference to the possibility that the plaintiff might survive her husband; and it seemed to be supposed that there was something wrong in giving a large estate to Smith Germond in such a manner as to preclude his widow from recovering dower. But there is surely nothing in this. The donor, so long as he violates no rule of law, may bestow his property on whom and in what form he pleases. If the testator had given nothing to Smith Germond, the plaintiff would have had no cause for complaint; and she is not injured by the testator’s bounty, although it came in the form of money.

As to any land which might remain unsold, Smith Germond had a power of appointment by last will; and in default of such appointment, there was a limitation over to the heirs of the testator. Whether these provisions are valid or not, is a question which does not arise in this case. It is enough for the present occasion to say, that as to the property now in question, Smith Germond executed the power of sale in his lifetime.

The view which has been taken of the principal question shows, that the evidence which was offered concerning the value of the testator’s property was not material, and there was, consequently, no error in rejecting it.

New trial denied.  