
    Maximilian J. L. Towler et al., Resp’ts, v. Blanche Towler, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Deed—Reservation—Construction.
    One T. executed and delivered to his three children a deed which contained the following provision, “reserving to the party of the first part the power to devise, by last will and testament, an undivided one-third part of said premises unto any hereafter taken wife of him, the party of the first part, for and during the term of her natural life, or, at his option, to-give and grant, by deed, to said hereafter taken wife, or to any person intrust for her, the same undivided one-third part of said premises for and during the term of her natural life.” After the date and delivery of this deed,_T intermarried with defendant, and thereafter died without having exercised the right reserved by him to convey, either by deed or will, to his wife, a life estate in one-third of the premises. Held, that the reservation was a mere reservation of a right which the grantor might or might not exercise, at his pleasure.
    Appeal by the defendant, Blanche Towler, from a judgment-entered in Ontario county, May 9, 1892, on the decision of the court at special term, in an action brought by the plaintiffs under § 1638 of the Code of Civil Procedure, to compel the determination of claims to real property.
    
      Arthur P. Rose, for app’lt; Charles A. Hawley, for resp’ts.
   Macomber, J.

John Towler, the father of the plaintiffs, Maximilian J. L. Towler, Agnes B. P. Morgan and Caroline L. Smith, did on the 20th day of June, 1881, execute and deliver to these his children, a deed of certain real estate in the village of Geneva, N.Y., containing the following habendum and reservation clauses : “ To have and to hold the above granted premises unto them, the parties of the second part, their heirs and assigns, as tenants in common and not as joint tenants, and subject only to the reservations thereinafter stated.”

“Reserving to the party of the first part an estate in said granted premises for and during the term of his natural life, so that the •estate hereby granted to the parties of the second part shall only wqst in possession upon the death of the party of the first part.

“And further reserving to the party of the first part the power to devise, by last will and testament, an undivided one-third part •of said premises unto any hereafter taken wife of him, the party ■of the first part, for and during the term of her natural life, or (at ¡his option) to give and gfant, by deed, to said hereafter taken ■wife, or to any person in trust for her, the same undivided one-third part of said premises for and during the term of her natural life, * * * and the said John Towler, • the above granted ■premises, in quiet and peaceable possession of the parties of the second part, their heirs and assigns, will warrant and forever defend, subject only to the reservations herein above expressed.”

After the date and delivery of this deed, and on the 6th day of August, 1881, the grantor, John Towler, intermarried with the defendant, Blanche Towler. He died on the 2d day of April, 1889, without having exercised the right reserved by him to convey, either by deed or will, to his subsequently taken wife a life estate in one-third of said premises.

The learned justice, in his decision, has held that the power reserved in this deed to devise or to convey to any aftertaken wife, or to some person in trust for such wife, an undivided one-third of the premises for life, was a special power in trust; and that the execution of such power was imperative upon the decedent, and that-the same, if valid, would be enforced in equity. But he further held that such limitation of a life estate might operate to suspend the power of alienation for a period longer than two lives in being at the time of the execution of the deed, and that, consequently, such a life estate to an aftertaken wife was void.

An ingenious and subtle argument covering much of the learning relating to trusts and trust powers has been addressed to us by the learned counsel for the appellant, designed to show that this reservation was a power in trust, and that it was also capable of being enforced in equity, and was not obnoxious to the criticism placed upon it by the learned trial justice in his decision and in his opinion.

But as we view this deed no complex question of the nature above outlined exists in the case. The deed is plain. The reservation was a mere reservation of a light which the grantor might or might not exercise, at his pleasure, to grant or devise to any wife which he might thereafter take, a life estate in one-third of the premises. We are unable to see that the language of this instrument conveys any other thought than a well-expressed intention on the part of the grantor to reserve to himself absolute control over that part of the estate, and that there is nowhere apparent any purpose on his part to obligate himself to carry out any trust power for the benefit of any person. We can see no distinction between tjiis reservation as expressed in the deed relating to what he might choose to bestow upon a wife subsequently married by him, and the reservation of a life estate in himself with the exclusion of the grantees from a possession of the premises until the grantor’s death. The word “ power,” used in this deed, manifestly was not technically used with a view to the provisions of our revised statutes relating to uses, trusts and powers. It was manifestly used in the sense of right, liberty or privilege.

.If this be correct, it follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.  