
    Maximilian J. Towler et al., Resp’ts, v. Blanche Towler, App’lt., 
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894)
    
    Deed—Reservation—Power in trust.
    The reservation in. a deed of a power to create a life estate in an undivided third of the land granted, in favor of a proposed life tenant, imposes no obligation upon the grantor, or upon the land, in favor of such life tenant, and creates no power in trust which a court of equity will enforce.
    Appeal from supreme court, general term, fifth department.
    Action under Code Civ. Proc. § 1638, to compel the determination of claims to real property.
    
      A. P. Rose, for app’lt; Charles A. Hawley, for resp’ts.
    
      
       Affirming 48 St. Rep. 39.
    
    
      
       Note. This decision simply‘determines the case in bar, but establishes no authoritative principle, as one of the judges dissented and three of them concur only in the result.
    
   O’Brien, J.

The plaintiffs are the children and sole heirs at law of John Towler, who died in the year 1889, and who, at the time of the conveyance in question, was seized of the real property described in the complaint. This action was brought to determine conflicting claims to this property under the provisions of § 1638 of the Code. On the 20th of June, 1881, the deceased was the owner in fee of the property, and in possession and enjoyment. On that day he executed and delivered to the plaintiff a conveyance of the land, to have and to hold as tenants in common, subject to a life estate which he reserved to himself, declaring that the estate conveyed to the plaintiffs should only vest in possession upon his death. The conveyance was also subject to the following reservation: v 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 grant, by deed, to-said hereafter taken wife, or to any person in trust for her, the same undivided third part of said premises, for and during the term of her natural life.” On the 6th of August, 1881, after making this conveyance, John Towler, the deceased, married the defendant, and died on April 2,1889, without having, in any way, executed the power reserved to him in the deed. The sole question in the case arises upon these undisputed facts. The defendant claims that, by the reservation in the deed, her deceased husband created in her favor a special, imperative, trust power, the performance of which will be decreed in equity, and, since it was never executed, it may now be considered as decreed for her benefit, and, therefore, that she is now entitled to a life estate in aii undivided third of the premises. By section 96 of the article in the Revised Statutes in relation to powers, it is provided 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.” 4 Rev. St. (8th Ed.) p. 2448. When the donee of a power such as is referred to in this section dies without executing it, equity will regard as done what it was the duty of the trustee to do, and so> the title vests in the person for whose benefit the power was created. Smith v. Floyd, 140 N. Y. 337; 55 St. Rep. 735. In this case the grantor to the plaintiffs granted or conferred no power to any third person to create, by means thereof, any future estate, but reserved that power in himself. By § 105 of the statute, the grantor in any conveyance may reserve to himself any power, beneficial or in trust, which he might lawfully grant to another ; and every power thus reserved shall be subject to the provisions of this article, in the same manner as if granted to another. We think that this reservation in the deed, at most, created nothing more than a mere power, not coupled with any trust. It is not a special, imperative, trust power, within the meaning of the statute, but a power which the grantor reversed, and could execute, or not, at his pleasure. He could not have been compelled to execute it in his life-time; and had he, before his death, conveyed all his interest in the estate to the plaintiffs, they would have taken the whole title in fee simple, unfettered by any trust or interest of any kind in favor of the defendant. An instrument creating a power, like all other instruments, must receive a reasonable construction; and the intention of the party executing the instrument is to be ascertained from the language used, the situation of the parties, and all the surrounding circumstances. Perry, Trusts, § 248.

Applying these rules of construction to the reservation in the deed, we think that the grantor never intended to, and did not in fact, create a special trust power, which was imperative, within the meaning of the statute. Had he granted this power to another, his intention to create a trust, and to make its execution imperative, would be a reasonable inference from the language, as well as from the circumstances, and the statute would then operate upon it. But here he simply reserved to himself a certain estate in the land and certain powers over it, which he always had, and never conveyed or surrendered to any one. As to every interest in the land, and as to every power over it, which was not conveyed to the plaintiffs, the deceased held it as before, unfettered by any trust power or other limitation. By reserving power to create a life estate in an undivided third of the land, be limited the operation of his grant to the plaintiffs; but he imposed no obligation upon himself, or upon the land, in favor of the defendant, that did not exist before the execution of the instrument. Any other view would require us to hold that the reservation by the grantor of this power was equivalent to the creation of a life estate in favor of the defendant. This would be giving to the deed an effect never contemplated by the grantor, and creating an imperative trust power in a manner not intended by the statute. But it is said that the power is imperative unless its execution or nonexecution is made expressly to depend upon the will of the grantee. If that section has any application to such a case as this, it may be observed that, where the reservation is read in the light of all the circumstances, it does appear that its execution or non-execution is made expressly to depend upon the will of the grantor. In conveying to his children, he reserved certain interests and powers which he always had,—that he could execute or relinquish at his pleasure, just as he could convey his life estate. He created no obligation against himself, but was left perfectly free to do what he would with his own. From the very nature of the transaction, the situation of all the parties, and the origin of the power itself, its execution necessarily depended upon the will and discretion of the person who reserved it. To say that, by reserving it, he imposed a duty upon himself with respect to its execution, is to assert that he could be compelled by a court of equity to abridge his own life estate in case its execution had been provided for by deed alone. The words of a power of this character are not always confined to what they necessarily import in their strictest legal sense,- but they are to be construed according to the intention of the party using them. Wilson v. Troup, 2 Cow. 196. This was a bare power to creat a future estate reserved by the grantor as a part of his old dominion over the lands. Such powers, as I understand it, are never imperative, hut their execution depends entirely upon the will of the donee. 2 Hill. Real Prop. 617. It is only when the power is a trust that a court of equity will decree the execution. That this was a mere power reserved, uncoupled with any trust, is shown by the fact that the deceased husband could have extinguished it by conveying his life estate to the children already entitled to the remainder. 4 Kent, Comm. 847. He could have exercised this reserved power so as to confer a life estate in one-third upon the defendant, but it was optional with him to do so, or not; and, as he died without executing the power, the defendant has no interest in the lands.

I have thus far treated the instrument as a power, within the meaning of the statute, though not imperative. The seventy-fourth section defined a “power” as 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 not by any means clear that the reservation in question is a power. It is true that it is such in form, as it professes to confer authority to do some act in relation to lands, or the creation of an estate therein. But his right to do all that can be referred to his original estate, and the power growing out of that title, a part of which he still retained. In this view the writing cannot be said to confer any new power, but simply retains in the grantor the part of the estate not granted, and is a reservation of a part of the estate, and not in the nature of a “power,”, as that term is used in the statute. In any view, however, that may be taken of the technical character of the instrument, the creation of a futher estate in favor of the defendant was not an imperative duty imposed upon the deceased, but remained as before the execution of the instrument, purely discretionary. These views lead to an affirmance of the judgment appealed from.

All concur.

Andrews, C. J., and Gray and Bartlett, JJ.,in result, except Earl, J., who dissents on ground that the conclusion reached in the opinion nullifies § 105 of the Code. Judgment affirmed.  