
    Anna B. Dana, Ex’rx, App’lt, v. Agnes Murray, Impl’d, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 16, 1890.)
    
    1. Will—Perpetuities.
    By the will of her husband Maria Murray took a life estate in his real estate, remainder to her children, share and share alike, unless she should leave an instrument in which she should “ direct, limit or appoint the person or persons who should take and hold the same. ” She died leaving a will stating that “by virtue of the power in the said deed contained," etc., she-provides that the premises be held and enjoyed by her husband and three daughters, naming them, so long as any two of the daughters should remain single and unmarried, and for the space of one year after the marriage of the daughter who should be married second in the order of time, and authorized and empowered her executor after the expiration of the-year to sell the premises and divide the proceeds among all her children who may then be living and the issue of any who may be dead. Held, that, the will was void, as there was a suspension of the power of alienation.
    2. Same.
    The will created a life estate in her husband and three daughters determinable upon the marriage of two of the daughters, each taking as tenants in common with cross remainders, which could not be terminated except upon the death of the four life tenants without the marriage of two of the daughters. So that with the exception of the undivided one-fourth part originally taken by the survivor under the will more than two lives must pass before the life estate would be terminated.
    3. Same—Power op sale.
    The estate attempted to be created by the will being void, the power of sale authorized to take effect at the termination of the estate becomes inoperative and must be regarded as also void.
    Appeal from a judgment of the general term of the supreme-court, first department, reversing the judgment of the special term upon the merits and dismissing the plaintiff’s complaint.
    
      S. P. Nash and James B. Murray, for app’lt; Joseph H. Choate, for resp’t.
    
      
      
         Reversing 7 N. Y. State Rep., 391.
    
   Haight, J.

This action was brought for the partition of real estate. It appears that on the 23d of June, 1847, John M. Mason and wife executed and delivered to Frederick Bronson a deed of the premises sought to be partitioned, “ upon trust to receive the rents, issues and profits of the said premises hereinabove granted and described, and apply the same to the sole and separate use of the said Maria (Murray) during the lifetime of (James B. Murray) her husband, and on his death- to convey the said premises to the said Maria; and if the said James B. Murray shall survive the said Maria, then upon the further trust to apply the same during her natural life, free from debts or control of her present or any future husband, * * * and from and after the decease of the said Maria, then upon trust to convey and transfer the said premises to such person or persons, to such uses and purposes, and in such manner as the said Maria by her last will and testament * * * may * * * direct, limit or appoint. But in case the said Maria shall depart this life without having made or executed such will, * * * then the said lands and premises shall, in such case, upon the death of the said Maria, belong to all and every the child or children of the said Maria living at the time of her death, and to the issue of such of them as shall be dead, share and share alike, in fee simple, the issues of such deceased child or children to take no more than his or their parent would have taken if living, and in case there be no child of the said Maria or the issue of any deceased child living at the time of the death of the said Maria, then to her heirs at law in fee simple; and the said party of the second part (the trustee) is hereby directed to convey and transfer the said premises accordingly,”

The trustee accepted the trust and discharged the duties thereof until January 12, 1849, when he resigned and conveyed the premises to James B. Murray upon the trust and for the uses mentioned above, who discharged the duties of the trust until February 14, 1866, when be died, since which no trustee has been appointed. December 22, 1851, Maria Murray died, leaving her surviving James B. Murray, her husband, four sons and three daughters, her only heirs-at-law, and a last will and testament, duly admitted to probate March 12, 1852, which, after- reciting the provisions above quoted from the deed of trust, provides that: How, therefore, I, said Maria Murray, wife of the said James B. Murray, by virtue of the power in the said deed'contained and in execution thereof, do hereby devise, direct, limit and appoint with regard to the said premises as follows : First, it is my will that the said premises in the said deed granted and conveyed, as aforesaid, shall beheld and enjoyed by my husband, the said James B. Murray, and my daughters, Caroline, Agnes and Anna, so long as any two of my said daughters shall remain single and unmarried, and for the space of one year after the marriage of the daughter who shall be married second in the order of time, and I do hereby authorize and empower my executor and trustee hereinafter named, at any time after the expiration of the said year last mentioned, with the consent of my husband if he shall be living, to sell the said premises at public or private sale on such terms and for such price as he may deem expedient. ‘ * * * And I ■ do direct that the proceeds. of the said sale, after deducting the expenses thereof, be divided among all my children who may then be living, and the issue of any of them who may be dead, in equal shares, the issue of any deceased child to take the share of his, her or their parent.”

Frederick Brunson, the trustee under the deed, or whoever may be such trustee at the time of her decease, was, by the terms of the will, appointed executor and trustee. Anna was married on the 27tli day of December, 1855, but Caroline and Agnes have remained unmarried. Agnes is still living, but Caroline has died since this action was commenced. James B. Murray, the husband of the testatrix, died on the 11th day of February, 1866.

The trial court held that the will was null and void, so far as the premises in question were concerned, and that the fee, upon the death of Maria Murray, vested in her seven children.

The general term appears to have been of the opinion that the will was valid; that the fee vested in the three daughters, and that the power of sale contained in the will was a discretionary, naked power.

In order to determine the validity of the will, in becomes important for us to first ascertain what has become of the fee if the instrument is valid. Under the provisions of the deed the premises, upon the death of Maria, vested in her children, share and share alike, in fee simple, unless she should leave an instrument in which she should direct, limit or appoint the person, or persons, who should take and hold the same. Has she made such appointment ? It was evidently her intention so to do, for, after reciting the main provisions of the trust deed, she states in her will that, by virtue of the power in the said deed contained and in execution thereof,” she hereby devises, directs, limits and appoints. As we have seen, she first provides that the premises should be held and enjoyed by her husband and three daughters, naming them, so long as any two of the daughters should remain single and unmarried, and for the space of one year after the marriage of the daughter who should be married second in the order of time. She does not, in express terms, devise the fee or remainder, but she does authorize and empower her executor to sell after the expiration of the year and to divide the proceeds among all her children who may then be living, and the issue of any of them who may be dead, in equal shares, the issue of any deceased child to take the share of his, her or their parent. Her intention is quite apparent. She doubtless wished to provide a home for her husband and unmarried daughters so long as two of them should remain unmarried, and then that the premises should be sold and the proceeds divided among all her children then living and the issue of those that were deceased.

It does not appear to have been her intention to vest in her husband and daughters the fee or any other estate than that described. True, as we have stated, she has not, in express terms, devised the fee, but she has created a power of sale, and this power was given for the purpose of dividing the proceeds of the sale among her children, etc. We do not understand such a power to be naked and discretionary. A power as defined by the statute is an authority to do some act' in relation to lands or the creation of estates therein or of charges thereon which the owner, granting or reserving such power, might himself lawfully perform. It is general or special and beneficial or in trust. It is general where it authorizes the alienation in fee by means of a conveyance, will or charge of the lands embraced in the power to any alienee whatever. It is special where the persons or class of persons to whom the disposition of the lands under the power is to be made are designated, or where the power authorizes the alienation by means of a conveyance, will or charge of a particular estate or interest less than a fee. It is beneficial when no person other than the grantee has, by the terms of its creation any interest in its execution. A general power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds, or any portion of the proceeds or other benefits to result from the alienation of the lands according to the power. 1 R. S., pt. 2, chap. 1, title 2, art. 3, §§ 74, 76, 79, 94.

The power given by the testatrix to her executor was to sell at public or private sale, on such terms and for such price as he may deem expedient, and upon such sale to create all necessary proper deeds and conveyances to the purchaser or purchasers thereof, which sale and conveyance shall be a complete bar to all claims to the estate or interest in the said premises of her children and heirs, or any person claiming by or through them. The conveyance thus authorized was of the fee. It could be made to any person whatever. The power was, therefore, general within the provisions of the statute. The executor, thus authorized and empowered to sell, was given no interest in the proceeds whatever.

Such proceeds were directed to be divided among all of her children who may then be living and the issue of any of them who may be dead, in equal shares, the issue of any deceased child to take the share of his, her or their parent. The power of sale thus authorized was in. trust for these children, who were the persons entitled to receive the proceeds thereof. It was, therefore, a general power in trust, as defined by the statute. The statute further provides that every trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested. Section 96.

It follows that the power in question, under the express provision of the statute, is imperative, and its execution will be compelled by the court; and this being the case, it operates to suspend the vesting of the fee until the power is executed or the estate is terminated. Delafield v. Shipman, 103 N. Y., 463; 4 N. Y. State Rep., 247; Delaney v. McCormack, 88 N. Y., 174.

It is contended that the fee vested in the heirs of Mrs. Murray immediately upon her death, and that the provisions of the will directing the proceeds upon the execution of the power of sale to he divided among the children then living, etc., should be rejected under the authority of Henderson v. Henderson, 113 N. Y., 1; 21 N. Y. State Rep., 800.

Of course, if we are to reject the provisions of the will, then the fee would vest under the provisions of the deed, but if the will is valid, it is not apparent how we can reject a portion so vital as the distribution of the proceeds of the real estate upon the execution of the power of sale given. W e are aware that in the case of Henderson v. Henderson the provision was rejected, but in that case the testator had authorized his executor to partition and divide his residuary estate among his children living at the time of such partition, and the issue of any child or children who had died leaving issue.

The executor was directed to make the partition as soon after the testator’s decease as practicable, having reference to the condition of the estate, but in order to avoid sacrifice and loss to the estate by reason of being compelled to convert into money he was not required to make the partition until after the lapse of five years. The provision was rejected for the reason that it would thwart the main testamentary purpose of the testator. In that case but a short period of time was expected to elapse after the death of the testator before partition should be made and no material change in his children was contemplated. Whilst in this case an estate was created which might continue through the lives of four individuals and until nearly all of the heirs then living were dead, and there,is no main testamentary purpose to be frustrated by the provision in question. On the contrary, it would rather appear that this provision together with the one providing a home for the husband and unmarried daughters were the main purposes of the testator.

Still, assuming the will to be valid, what was the nature of the estate devised to the husband and three daughters, and when may the power of sale be executed? The provision is, as we have seen, that the premises shall be held and enjoyed by her husband and three daughters so long as any two of the daughters shall remain single and unmarried and for the space of one year after the marriage of the daughter who shall be married second in the order of time. On the marriage of one of the daughters her spinsterhood would cease, but not the estate, for two daughters would still remain unmarried. If neither of these daughters should marry, the estate would still continue during their lives and inasmuch as this event may never happen, it must be regarded as an estate for life subject to defeat in case of the marriage of the second daughter. 2 Blackstone, 121; Roseboom v. Van Vechten, 5 Denio, 424.

The estate devised to the husband and three daughters is in solido, and the statute provides1 that “ every estate granted or devised to two or more persons in their own right shall be a tenancy in common unless expressly declared to be in joint tenancy.” 1R. S., 727, § 44.

Here we have no express words devising the estate to them as joint tenants, or words clearly imputing such intent, and they consequently must be regarded as tenants in common. Purdy v. Hayt, 92 N. Y., 446-452; In the Matter of Verplanck, 91 id., 439—443.

But one sale has been authorized and one division ordered after the termination of the life estate, and the persons entitled to such division can only be ascertained when that event shall take place. The property consists of a house and lot not capable of being partitioned. Her desire, as we have seen, doubtless was to provide a home for her husband and unmarried daughters, and it was manifestly her intention that the survivor or survivors should succeed for life, or during the continuance of the estate of those that should die. Bach, therefore, took a life estate with cross remainders as tenants in common, determinable upon the marriage of two of the daughters, so that when the husband, James B. Murray, died, his one-fourth interest vested in the three daughters, and when Caroline died, her life interest vested in the two remaining daughters, and when one of the two.remaining daughters shall die the life estate will vest wholly in the survivor. The will has provided for the termination of the estate upon the marriage of two of the daughters, and no express provision has been made for the termination of the estate in case all of the life tenants shall die during the spinsterhood of the daughters, or two of them, but the estate created was only a life estate, and of ne^ cessity terminates with the death of all of the life tenants. The power of sale provided for in the will can be exercised in one year after the marriage of the second daughter, or after the termination of the life estate, which upon the failure of the two daughters to marry could only occur upon the death of all the life tenants.

Having ascertained the nature of the estate devised, it remains to be determined whether or not the will is valid under the statute. As we have seen, the will was but the execution of the power of appointment given to the testatrix by the trust deed to Bronson. She was not the owner of the premises, and could convey the fee only in the exercise of the power given by this deed. The statute provides that the period during which the absolute right of alienation may be suspended by any instrument in execution of a power shall be computed, not from the date of such instrument, but from the time of the creation of the' power. And no estate or interest can be given or limited to any person by an instrument in execution of a power which such person would not have been capable of taking under the instrument by which the power was granted. 1 R. S., 737, §§ 128, 129 ; Everitt v. Everitt, 29 N. Y., 39-78.

The will was the instrument executing the power which was created by the deed. It consequently must be joined with the deed, and a computation of the time within which the right of alienation may be suspended determined from the date of the deed. The statute further provides that every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed; that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in a single case mentioned which has no connection with the question under consideration. IRS., 723, §§ 14, 15.

A future estate dependent upon a precedent estate is termed a remainder. Sec. 11. It is either vested or contingent. It is vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. It is contingent whilst the person to whom, or the event upon which, it is limited to take effect remains uncertain. Sec. 13.

The estate created by the will in favor of the husband and three daughters was a precedent estate. The imperative power of sale given in trust for the children of the testatrix then living, and the issue of those that are dead, operated to vest in them the fee on the termination of the precedent estate. It was, therefore, a future estate dependent on a precedent estate, which is termed a remainder. It is contingent for the reason that the persons to whom the estate is limited to take effect remain uncertain. The children of the testatrix now living may die leaving children who will take in their parents’ stead when the event occurs upon which the precedent estate is terminated. The estate being a contingent remainder is, therefore, inalienable. Leonard v. Burr, 18 N. Y., 96-107 ; Radley v. Kuhn, 97 id., 26-34.

The deed created a life estate in Mrs. Murray. Her will created a life estate in her husband and three daughters terminable upon the marriage of two of the daughters, each taking as tenants in common with cross remainders; the same cannot be terminated except upon the death of the four life tenants without the marriage of two of the daughters. So that, with the exception of the undivided one-fourth originally taken by the survivor under the will, more than two lives must pass before the life estate would be terminated, and this would be so even omitting the life estate created by the deed, -but under the statute to which we have already called attention we think this life should be counted. The rule is that where by the terms of a deed creating an estate there may be an unlawful suspension of the power of alienation, the limitation is void although it turns out by a subsequent event that no actual suspension beyond the prescribed period would have taken place. Hawley v. James, 16 Wend., 121; Purdy v. Hayt, 92 N. Y., 446, 457; Haynes v. Sherman, 117 id., 433, 437; 27 N. Y. State Rep., 254.

The estate may yet be terminated by the marriage of the second daughter, but before the happening of that event all of the other" life tenants may die, thus leaving the provision within the condemnation of the statute. It may be claimed, however, that as to the undivided one fourth originally taken by the surviving life tenant under the will, that as to that interest only two life estates have been created. The case of Purdy v. Hayt, supra, adds weight to this claim and presents a serious question. But at this time it is impossible to tell who will be the surviving life tenant, or whose one-fourth interest would be within the provisions of the statute. The case is, therefore, presented, where three-fourths of the life estate devised is void under the statute whilst the other one-fourth may be valid, but it cannot be determined which is valid or which condemned until after the death of three of the life tenants. The person being unknown and the claim contingent we incline to the view that this is also within the condemnation of the statute.

The provisions of § 17 of the statute, to the effect that when a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, doubtless refers to estates in which the remainder is vested and is not contingent. In such estates the power of alienation is not suspended. Purdy v. Hayt, 92 N. Y., 446-451.

The estate attempted to be created by the will being void, the power of sale authorized to take effect at the termination of the estate becomes inoperative and must be regarded as also void. It follows that upon the death of Mrs. Murray the fee absolute vested under the deed in her children then living and the issue of such as were dead.

The judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concur; Bradley, J., in result.  