
    Wright against Tallmadge.
    A power is special where a class of persons to whom the disposition of lands under the power is to be°made is designated contingently, upon the happening of a certain event, as well as if a class or,person is designated absolutely.
    A power is not beneficial when any person other than the grantee has, by the lerms of its creation, an interest in its execution upon a certain contingency.
    The eightieth section of the article in relation to powers, (1 S. S., 732), providing that “a general and beneficial power may be given to a married woman to dispose, during marriage and without the concurrence of her bus-band, of land conveyed or devised to her in fee,” is an enabling and not a restrictive statute. It was designed to enable the grantor to give the fee to a married woman, with an absolute power of disposition during coverture. Section one hundred and ten of the article aforesaid (1 B. S., 735), completely takes away the disability of coverture in respect to the execution of powers. A married woman may, without the concurrence of her husband, execute any power which may lawfully be conferred on any person unless its execution during coverture be expressly or impliedly prohibited by the terms of the power.
    A power general or special, beneficial, or in trust, may be reserved to a married woman by a marriage settlement, by which the entire legal estate is vested in trustees.
    Appeal by the plaintiff from a judgment of the Supreme Court. The object of the suit was to procure a judgment setting aside, or reforming and correcting, a marriage settlement, of the property of the plaintiff, executed prior to her intermarriage with Henry Allen Wright, one of the defendants in this case. The plaintiff, before her marriage with Mr. Wright, was the widow of John Auchmuty, and was seized and possessed of a considerable real and persona’ estate, derived by devise or inheritance from her parents The marriage articles bear date the 24th April, 1848, and pur port to have been executed between H. A.Wright, the intended husband, of the first part, Mrs. Auchmuty, the intended wife, of the second part, and the same two persons and Thomas W. Ludlow, of the third part. They recite the intended marriage, the existence of a large estate owned by Mrs. Auchmuty, and an agreement between the intended husband and wife to settle said estate, upon the trusts and for the purposes after-wards declared. The party of the second part, Mrs. Auchmuty, in consideration of the intended marriage and of a nominal sum, then conveys her estate to the parties of the third part, their successors or assigns,- upon the following trusts: “For the use and benefit of the said Louisa (the plaintiff), until her said intended marriage shall take place, and from and after the solemnization thereof, then upon trust, from time to time to apply to the use .of the said Louisa, all the interest, dividends and annual produce thereof during the joint lives of the said Henry Allen Wright and the said Louisa Auchmuty, to her own proper use and benefit, and upon her own proper receipt for the same, notwithstanding her coverture, to the intent that the same may not be at the disposal or under the control of the said Henry Allen Wright, or in any manner subject to his debts and engagements; and from and immediately after the decease of the said Henry Allen Wright, in case the said Louisa shall survive him, then upon trust for the use and benefit of the said Louisa, her executors, administrators and assigns,, and upon trust in such case to grant and convey the trust estate and every part thereof to the said Louisa absolutely, or to grant and convey the same to such person or persons as she, by any writing to be by her duly executed, may limit, direct and appoint. But in case the said Henry shall survive the said Louisa, then upon trust, from and immediately after her decease, to apply to the use of the said Henry all the interest, dividends and annual produce thereof, from time to time during his natural life, to and for his own use and benefit; and on the decease of the said Henry to pay and divide the capital or principal of the said trust fund, and to grant and convey all her real estate to and among the lawful children of the said Louisa and their issue, in such proportions, shares, manner and form, as she, by any writing under her hand subscribed in the presence of two or more witnesses, shall direct and appoint; and for want of such appointment to and among the said children of the said Louisa and the lawful issue of such of them as may be deceased, according to the rules of descent and of distribution in cases of intestacy. But if there be no issue of the said Louisa then surviving, then, upon trust, to pay and dispose of the said capital or principal, and grant and convey the said real estate according to the direction and appointment of the said Louisa and for want of such appointment to and among her three surviving nephews and nieces, children of her sisters and the lawful issue of such of them as may be deceased, according to the like rule of descent and distribution.” A power was given to the trustees to sell the real estate, and to reinvest the proceeds in stocks, or in bonds and mortgages.
    The complaint alleges, that the true agreement between the parties to the intended marriage was, that the plaintiff should have the power during coverture, to control, manage and to sell or mortgage her separate estate, and that the limitations in favor of her issue, and her nephews and nieces, in default of appointment, contained in the articles as actually executed, were to operate only upon such residue of the estate as should remain undisposed of by her at the time of her decease, and that the articles ought to contain such provisions as these last mentioned. It is alleged that the articles were drawn by Mr. Holden, partly from a copy of certain former articles executed in 1828, which were furnished to him for a general guide in drawing the new articles, but which, it is suggested, were not adapted to the case, and that the parties executed the instrument prepared by Mr. Holden, without a full examination and without other professional advice; that the parties have recently discovered that it does not give Mrs. Wright the power to sell, mortgage or dispose of the estate according to the actual agreement. It is also suggested in the complaint, that the power of appointment contained in the articles as executed, is unauthorized by the Revised Statutes and is void, because she, the plaintiff, has no estate in fee simple in the property upon which the power is intended to operate; consequently, as the complaint alleges, it will go, by the terms of the article, absolutely to her nephews and nieces, in default of issue of her marriage.
    The action was tried at a special term, before Mr. Justice Mitchell. Mr. Holden, who drew the marriage articles, was examined on behalf of the plaintiff. He had been the counsel for Mr. Wright, and shortly before the marriage was employed by him to prepare the marriage settlement, which he was requested to do with great dispatch. Mr. Wright handed to him a draft of marriage articles, in the handwriting of the plaintiff, then Mrs. Auchmuty, which he informed him.had been prepared by her from an old draft which one of her relatives had drawn; and he (Holden) was requested to correct and modify it and have it engrossed, which he did. Mr. Wright came and took it away the next morning, the witness never having-seen the plaintiff; .and the marriage was immediately celebrated. The witness identified the draft of articles in the plaintiff’s handwriting. The plaintiff also produced her marriage settlement, executed by her former husband and herself, and their trustees, with certain changes in her handwriting to conform it to the case of her contemplated second marriage, the alterations being principally in the names of some of the parties.
    These former articles, thus altered, appear, by comparison, to have been copied by the plaintiff, and the copy so made was the paper delivered to Mr. Holden from which to draw the new articles. These new articles follow the language of the paper from which they were drawn in all respects material to the present question; the changes being only such as were necessary to conform the language respecting the trusts to that used in the Revised Statutes, and to clothe the trustees with power to sell real estate. The recitals in the former articles showed that the subject of that settlement was personal property, and as the second articles embraced real estate, certain changes in language were made by Mr. Holden to conform the new articles to that circumstance. There is no issue of either marriage.
    The learned justice was of opinion that the plaintiff had not made out a case for relief against the articles, and dismissed the complaint so far as that relief was asked for; but (a case therefor having been made, under ch. 375 of 1849) he rcndered a judgment that the trustees should convey the real estate embraced in the settlement to the plaintiff, with - such an estate therein as should be equal in duration to the beneficial interest which she took under the articles, and with such powers as were conferred upon her by those articles, but without any other power of disposition. This judgment was affirmed at the general term, whereupon the plaintiff appealed to this court. The case was submitted on printed briefs'.
    
      William Curtis Noyes, for the appellant.
    
      J. W. Edmonds, for the respondent.
   Denio, C. J.

One of the points relied upon by the appellant’s counsel to show that these marriage articles do not contain the settlement intended and agreed on by the parties is, that the power of appointment, professed to be conferred upon Mrs. Wright, is void by the provisions of the Revised Statutes, and that the estate, in the absence of issue of the marriage, must eventually go to her nephews and nieces, whatever may be her wishes in respect to the succession. If such were the effect of the instrument, I should find little difficulty in saying that it did not express her intentions; for I cannot perceive any motive which should induce her to tie up her estate’ and direct its succession, even upon failure of issue on her part, in a collateral line, by an irrevocable instrument executed by her while concluding a contract of marriage. But I do not see any reason for imputing such an effect to the articles. They provide, in terms, that she shall have power during coverture to appoint the estate in such proportions as she shall elect among her issue, if she shall have issue. If she have issue and do not make an appointment, then the estate is to pass to them according to the general rules of inheritance. In default of issue, she is authorized to appoint in favor of any person to whom she may wish to give the estate; and in default of issue and. of an appointment, then her nephews and nieces are to take, but only in that event. These provisions are, I think, perfectly legal. The appellant’s counsel relied upon the eightieth section of the article relating to powers, which declares that “ a general and beneficial power may be given to a married woman to dispose, during her marriage and without the consent of her husband, of lands conveyed or devised to her in fee.” (1. S., 732.) The argument is, that Mrs. Wright did not take a fee under the articles, and that this power, being a general and beneficial one, is not within the purview of the section referred to. There are many objections to this position. In the first place, the section is an enabling and not a restrictive one. When the Revised Statutes were enacted, an absolute conveyance in fee to a married woman would annex to the land a present life estate in the husband, and an estate by curtey, if there was issue of the marriage. It was to prevent this consequence, in case the grantor might wish to give the wife the power of disposition during the marriage, that the section was passed. Under it a wife could, even before the late law respecting married women, take a conveyance in fee to her separate use, with a power to convey to any one whom she might choose, for her own benefit; and thus a very proper marriage settlement could be made without the intervention of trustees. But there was not, in this case, any conveyance in fee to the wife, and therefore the section has no application to the plaintiff’s case. Nor has the eighty-seventh section, which relates to powers over a limited estate which a married woman may have in lands, to dispose of such estate without the concurrence of her husband. But by the one hundred and tenth section the disability of coverture, in respect to the execution of powers, is completely taken away, and a married woman may, without the concurrence of her husband, execute, during coverture, any power which may be lawfully conferred upon any person, unless the instrument creating the power forbids its execution during marriage. Again, this case is not within the eightieth section before mentioned, because the power is not general and beneficial. It is special, because the class of persons in whose favor it was to be executed, in a certain event, were pointed out, that is her issue. It was not beneficial for the same reason, and because her issue, in the same event, would have an interest in its execution. If the power had been general and beneficial, as the objection supposes, this question never would have arisen ; for a conveyance by the husband and wife, operating by way of appointment, as to her, and by way of release, as to him, of the remainder, limited in his favor by the articles, in case of his survivorship, would have transferred a perfect title to the whole estate ; and this, I understand, is what is desired by the plaintiff.. The plaintiff and her husband thought proper to provide, by these articles, for the probable case of issue of the marriage, by limiting an estate in fee to such issue, to take effect in possession at the death of both the parents, qualified only by the right retained by the wife of discriminating among them by way of appointment, and by the contingency of her surviving her husband; in which latter case, as the trust and all the powers engrafted upon it would be at an end, she might dispose of the estate as she thought proper. I think, therefore, that, the articles as actually executed are not repugnant to any provision of the Revised Statutes.

Nor do I see any evidence of a mistake in law, or in fact in drawing or executing the articles. The conveyancer had the most ample and authentic instructions for preparing precisely such an instrument as he did draw; for he was furnished by the plaintiff with a draft in nearly the same language, and of precisely the same legal effect, so far as the alleged mistake is concerned, as the one which was drawn and executed; and which draft was entirely in her handwriting. But it is said that this was copied by her, with the necessary variations in names, from her marriage settlement, executed in contemplation of her union with her former husband, and that by such former articles, the husband and wife, with the trustees, could have conveyed a perfect title to the property. It is probably true that she prepared the draft which was left with the conveyancer, from the former articles, and it is a fair inference that she intended that the new articles should be of the same general purport. But the former articles contained a limitation in favor of the issue of the then contemplated marriage, to the same effect as that contained in the present instrument, in respect to the expected issue of the last marriage. Perhaps that limitation might have been avoided by a breach of trust on the part of the trustees, but it could not otherwise, have been avoided. We are not to suppose that the plaintiff had in view such a method of undoing her settlement. The more probable, as well as the legal presumption is, that she intended both instruments to operate according to their terms, and designed that a certain provision should be secured to her issue out of her property, in the event of her dying in the lifetime of her husband.

I do not see that the nephews and nieces have any interest under these articles which is not subject to the will of the plaintiff. In default of issue of herself and husband, she is clothed with a power to appoint the estate in favor of a stranger. If the circumstances are such that issue is not now to be expected, I do not see but that a satisfactory title can be made by the husband and wife. She can convey her expectancy, which depends upon her surviving her husband, and he can release the limitation in his favor, which is to take effect upon the event of his surviving her, and her conveyance during coverture will have the effect of an appointment, which will cut off the contingent limitation in favor of the nephews and nieces. A purchaser will only incur the hazard of issue being hereafter born of the marriage. If this is so improbable as not to embarrass the transaction, there was no need of the relief which the plaintiff asks. If such is not the case, the court has no power to relieve the parties from their difficulty at the expense of such possible issue.

The judgment should be affirmed.

Brown, J., also delivered an opinion for affirmance.

All the judges concurring,

Judgment affirmed.  