
    William C. Adams and Grace F. Adams, His Wife, Respondents, v. Samuel F. Adams and Others, Respondents, Impleaded with Elias L. M. Bristol, Appellant.
    First Department,
    July 12, 1906.
    Partition — husband and wife — instrument creating jointure construed — when passive trust passes legal estate — evidence — proof of delivery of deed — revocation of instrument by parol.
    An instrument stated to be made in contemplation of marriage, whereby the grantor conveys lands in trust, the rents and profits to be paid to him for life and at his death the rents and profits to his widow, if living, so long as she shall live and remain unmarried, in lieu of dower; and containing a reversion to the grantor if his wife die first, and at the termination of the life estates giving a remainder in fee to the grantor’s father, his heirs and assigns forever, which instrument also contains provisions allowing a revocation thereof, although creating a passive trust and void as such, is good nevertheless to pass a legal estate to the beneficiaries and remaindermen, and the interests intended to be conveyed do not fail with the trust.
    The fact that the remainder is contingent does not defeat the instrument, for the limitation upon the precedent life estates is valid under section 39 of the statute of uses and trusts as then in force.
    The heirs of the remainderman arc entitled to a partition of said premises on the death of the grantor and Ms widow.
    Although a deed in order to be operative must be delivered and accepted, the record thereof raises a presumption of delivery in the absence of proof to repel the presumption.
    Parol evidence offered to show that the parties treated a valid deed as a nullity is not admissible as such title cannot be divested except by an instrument in writing under seal.
    Appeal by the defendant, Elias L. FI. Bristol, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 30th day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special s Term, determining the rights of the parties in an action for the partition of certain real estate.
    
      David McClure, for the appellant.
    
      Payson Merrill, for the plaintiffs, respondents.
   Patterson, J.:

This is an action in partition. The controversy relates to the title and ownership of premises No. 46 West Thirty-fifth street in the city of New York. The plaintiff William C. Adams claims that he and the defendants Samuel F. Adams, Sarah Jane Hull and Elias L. M. Bristol are seized as tenants in common of such premises. The defendant Elias L. M. Bristol claims to be the sole owner thereof. The court at Special Term adjudged that the defendant Sarah Jane Hull was entitled to one equal undivided one-third part of the premises; the defendant Elias L. M. Bristol to one equal undivided one-third part, and the defendants Samuel F. Adams, Sarah T. Adams and the plaintiff William 0. Adams each to an equal undivided one-ninth part thereof.

Prior to the 25th of January, 1875, William Henry White was the owner in fee of the premises in question. On that day an indenture or instrument in writing, in form a conveyance of the premises, was made and executed under seal and acknowledged by William Henry White, party of the first part, Matilda White, party of the second part, and William Warren White,'party of the third part. Provisions of that instrument will be hereinafter considered. It is under it that the plaintiff and the defendants, other than Bristol and Braker," claim title. The defendant Braker is for all purposes of the present appeal a nominal defendant, he having been merely a tenant of the premises. William H. White remained in possession of the property from the date of the conveyance above mentioned until his death on the 5th of January, 1890. He left a last will and testament which was duly proved as a will of real and personal estate before the surrogate of the county of New York on the 24th day of January, 1890; and by that last will and testament he gave, devised and bequeathed all his property, real and personal, to his wife, Matilda White. Matilda White was in possession of the premises, and retained such possession until her death While so in possession she married the defendant Elias L. M. Bristol. She died on or about September 14, 1891, leaving her husband her surviving. By her last will and testament, which was duly proved before the surrogate of New York county, after making certain bequests, she gave all her property to the defendant Elias L. M. Bristol. It is under this will that the defendant Bristol claims to be entitled to the whole of the premises in question. He entered into possession thereof on the death of his wife, and remained in continuous possession up to the time of the trial of the action. William Warren White, who was the father of William Henry White, died in 1883, leaving a last will and testament, in which he made devises of specific pieces of real estate to certain named persons, but his will did not contain a residuary clause. The premises Ho. 46 West Thirty-fifth street were not disposed of by said will, nor mentioned therein, and he died intestate as to that jxroperty. He left as his only surviving heirs at law three children, namely, William Henry White, Sarah Jane Hull and Alice Adams. The last-named child died in 1897, intestate as to the premises Ho. 46 West Thirty-fifth streét, leaving her surviving her children and only heirs at law, the plaintiff William C. Adams and the defendants Samuel F. Adams and Sarah T. Adams. The plaintiff Grace F. Adams is the wife of the plaintiff William C. Adams; the defendant Adele Lc Court Adams is the wife of the defendant Samuel F. Adams, and the defendant Elias L. M. Bristol is unmarried. The foregoing facts are all that are material to the consideration of the principal question involved on this appeal.

The controversy as to the ownership must be determined by considerations affecting the validity, interpretation and effect of the tripartite instrument or conveyance dated the 25th day of Januaxy, 1875, and under which the plaintiff William C. Adams and those dexlving title from the same soui’ee claim. At the threshold of the inquixy a question arises as to the delivery and acceptance of that instruxnent. The oi’iginal. was not produced at the tidal. Proof was made by the production of a certified copy fi-om the office of the register of the city and county of Hew Yoi'k. While in order to make a deed effective, there must be both a delivexy and acceptance with the intention that the instrument shall become operative as a conveyance, the recording of the deed may justify a presumption to that effect, and in the absence of proof to repel such presumption, it will prevail. (Ten Eyck v. Whitbeck, 156 N. Y. 352.) There is nothing in this record which countervails the presumption of delivexy and of acceptance, which is' invol ved in delivery. Indoi’sed on the instrument is a acidifícate of the register that it was recorded at the request of “Jno. L. & Wm. Lindsay.” The members of that firm were attorneys at law and acted in 1875 for William Warren White in all his real estate transactions. Such testimony as there is in the ease bearing upon the subject of persons connected with the law firm mentioned indicates that the instrument was delivered and accepted. It certainly does not tend to the contrary. The justice at Special Term was authorized to find that there was a delivery and acceptance of the instrument.

But the interpretation to be given to the provisions of this instrument and its legal effect are matters by no means free from doubt and perplexity, and a very able and forcible argument has been made by counsel for the appellant that it is wholly inoperative as a valid conveyance of interests in lands. In its 1st clause it recites that “ Whereas, a marriage is intended to be had between the said parties of the first and second parts (William Henry White and Matilda White) and the said party of the first part is seized of an estate in the City of Hew York, and it is agreed by and between them that a portion of said estate should be settled upon the trusts and for the purposes hereinafter declared,” therefore, in consideration of the intended marriage and of the sum of one dollar, “ the said party of the first part has granted, bargained and sold and by these presents doth grant, bargain and sell unto the said party of the third part (William Warren White) his successors and assigns,” the premises in question, “to have and to hold the same unto the said William Warren White to and upon the uses and trusts following, that is to say: To the use of the said William Henry White, the said party of the first part, for and during the term of his natural life, so that he may have and enjoy the rents and income thereof, and after his decease to the use of the said Matilda White, so long as she shall remain his widow and unmarried, so that she may have and enjoy the rents and income thereof for her jointure, and (with the further provisions hereinafter mentioned) in lien and satisfaction of her whole dower in the estate of which he may be seized at the"time of his death; and upon her marriage or death, the same to be and become the sole and absolute property of him the said William Warren White, his heirs and assigns forever; but should the said Matilda White predecease the said William Henry White, then the trust hereby created shall cease and said premises shall revert to the said William Henry White, and said party of, the third part shall in that case execute and deliver a conveyance thereof to him.” It is then recited in the instrument that the party of the first part has made and executed a last will and testament whereby he has bequeathed to Matilda White for her sole and absolute use certain personal property and money, and has directed that all taxes and assessments and all expenses in insuring and repairing the said premises, and all other charges for the proper maintenance thereof shall be paid out of the estate so long as Matilda White remains his widow and unmarried. And then Matilda White covenants and agrees with William Henry White that the lands so assigned to her, and the provisions so made for her, as expressed in and by the last will and testament of the said William Henry White, shall be in full satisfaction of her dower and thirds in the estate of which he might die seized, and shall bar her from claiming the same, if she shall survive him, and that she will when required so to do execute without receiving any consideration therefor releases of dower to purchasers of real estate of her intended husband. It is also provided in the instrument as follows: “And it is further agreed by and between the parties hereto that the provisions of this settlement may at any time hereafter be changed or altered, and said premises otherwise disposed of, upon the consent in writing, duly Acknowledged, of the said parties of the first and second parts, and of said party of the third part, or his successor or successors.”

It is conceded that the trusts created by this instrument are passive, and as such are invalid. Since the Revised Statutes were enacted the effect of á conveyance containing such trusts is simply to prevent the trustee taking an estate or title and to pass the whole estate over to the beneficiary if he is entitled to the possession of the land. ( Wright v. Douglass, 7 N. Y. 564; Wendt v. Walsh, 164 id. 154.) The argument on behalf of the appellant is that the operative effect of the instrument before us depended entirely upon the existence of a trust estate and trust title, and that it is apparent that William Henry White, the grantor, did not intend to convey any interest separable from or independent of a title in the trustee, and that the trust failing the intended interest created through the medium of a trust fell with the trust. The claim is that the particular intent of the instrument was to cut off dower of the wife in her husband’s realty, to postpone until after his death the compensation which the wife would receive for all releases of dower, to keep the property at all times within the reach and power of disposal of the settlor and his wife, and that the whole instrument was in its purport and effect nothing else than an ante-nuptial trust agreement executory and revocable.

We have not failed to be impressed by the forcible character of this argument, and yet we must construe this deed or conveyance to ascertain and effectuate the real intention of William Henry White in executing and delivering it. Notwithstanding the provision for revocation, and despite some of its contradictory provisions, we gather the intention of the grantor to have been, first, to reserve to himself an interest for life in the property; second, to grant to his intended wife an interest for life or during widowhood, and, third, to grant an estate in remainder to his father in fee. Those purposes and that intention are plainly indicated and could have been accomplished without the intervention of a trustee or a trust title. In this case the effect of the statute converting the beneficial interests in a passive trust into legal estates simply accomplishes the real intention of the grantor. That the remainder might be defeated in case of death of the intended wife before that of the grantor, and the consequent reversion to him is not material. We are of the opinion that the instrument is effective as a conveyance of a future estate for life or widowhood in Matilda White and a remainder in William Warren White and'his heirs — his children and heirs standing in his place — he having died before his son William Henry White. This view, we think, would control even if the grant to William Warren White would not take effect strictly as a remainder limited upon the particular estate for life or widowhood of Matilda White. The provision cannot be read out of the deed that after the death of Matilda White, she surviving her husband William Henry White, the premises shall “ become the sole and absolute property of him the said William Warren White, his heirs and assigns- forever,” but we are of the opinion that the estate in remainder was sufficiently limited upon a precedent life estate of Matilda White under the provisions of section 29 of the Statute of Uses and Trusts (E. S. pt. 2, chap. 1, tit. 2, art. 1, § 10).

- At the trial the defendant Bristol offered to prove certain facts which were relied upon as evidence of a revocation of the deed, but the court rejected such proof, and that was done in accordance with the provisions of an order in force at the time of the trial, precluding the defendant from giving evidence of that character. The defendant Bristol was not, however, by the order debarred from offering proof that all the parties treated the conveyance of January 25, 1875, as a nullity and the property as still being that of William Henry White. Bnt even in that aspect the court was not in error in rejecting the proof, for, if we are right in the views we have expressed concerning the effect of the deed, and if the title was in the heirs of William Warren White, it could not be divested except by an instrument in writing under seal. The proof offered was, therefore, immaterial. e The judgment should be affirmed, with costs.

O’Brien, P. J., Ingraham and Houghton, JJ., concurred 3 McLaughlin, J., concurred in result.

Judgment affirmed, with costs. Order filed.  