
    Michael F. Cusack, App’lt, v. Oliver B. Tweedy, Ind. and as Ex’r, Resp’t.
    
      (Court of Appeals,
    
    
      Filed March 17, 1891.)
    
    1. Deed—Delivery essential to validity of.
    No presumption of the delivery of a deed signed by only a part of the grantors can arise from an utterly unauthorized record shown to have originated in a mistake and made half a century after the original was drawn.
    2. Will-Power of sale.
    A testator by his will gave his residuary estate to his executors in trust to rent and invest and collect the rents, issues and profits and apply one-fourth of the same to the use of each of his four children for life, and at death to convey and pay the same to such child’s issue. By a subsequent clause it gave the executors power to sell the whole or any part of the estate in their discretion at any time or times, and in the meantime to collect and receive the rents of the whole of the real estate. Held, that the power of sale in the trustee subsisted beyond the death of one of the children, and that the executor’s deed gave good title, as the power was to be exercised for the purpose of distribution.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing complaint and decreeing specific performance of a contract for the sale of real property.
    
      Russell Benedict, for app’lt; Theodore Be Witt and George G. Be Witt, Jr., for resp’t.
   Finch, J.

The vendee objected to the title tendered by the vendor upon two grounds: one, that the complete title never vested in the latter’s • testator, and the other that, if it did, the executor’s power of sale did not cover and cut off a vested interest as to which the trust had terminated.

All the difficulty underlying the first objection rests upon an imperfect and incomplete deed which the executor caused to be recorded after a lapse of fifty years. Disregarding that, the title of the testator is complete and. perfect. It is conceded that, prior to April 15,1813, the premises were owned by George Thompson, who died seized and intestate, leaving six heirs at law, viz.: George Thompson, John G. Thompson, Elizabeth Pinkney, Dolly Lord, Magdalene Crook and Maria Burnham, each entitled to an undivided one-sixth of the property. On the 20th of September, 1815, the first four conveyed their interests to Mrs. Crook, the husbands and wives joining, and that deed was recorded early in the following October, and vested with her own share five-sixths of the estate in Mrs. Crook. Objection was made to this deed on the ground of an alleged prior conveyance, but the objection was overruled and the deed admitted in evidence. Mrs. Crook, thus owning five-sixths of the estate, conveyed an undivided half to Joseph S’. Lord in trust for Maria Burnham, who owned the remaining one-sixth. The deed was dated May 31, 1817, and recorded in 1865, or after an interval of almost fifty years. On February 5, 1825, Lord, the trustee, and Mrs. Burnham, the beneficiary, conveyed back their interest under the trust deed to Mrs. Crook, and that deed like its predecessor was recorded in 1865.

In January, 1825, Mrs. Crook acquired the outstanding one-sixth owned by Maria Burnham, and that deed was also recorded in 1865. On the same day of the acknowledgment of that deed by Mrs. Burnham, Mrs. Crook made her last will in which she recites her entire ownership of all the shares and of the whole property and devises it to Joseph H, Lord in trust to pay the rents and profits to Mrs. Burnham for her life, and then to her son John Francis Burnham for his life, with remainder in fee to Joseph FT. Lord. By the death of the two life tenants the unincumbered fee passed by his will. Lord died in 1857 and his executor, the defendant Tweedy, finding in Lord’s safe four unrecorded deeds caused them to be recorded in 1865. Two of them were the deed of trust and conveyance back, any record of which was needless; one was the deed of Mrs. Burnham which we know was delivered and became effectual because it is recited in Mrs. Crook’s will under which the Burnhams took and accepted their life estates ; and one was the incomplete deed which the courts below have held was never delivered and never became operative. That deed is dated September‘9, 1815, or just eleven' days before the conveyance of the same grantors to Mrs. Crook, and was to her and Maria Burnham. The wives of the two Thompsons were named as grantors and seals were left for their signatures, but they had not signed. There was a witness clause for their signatures and that remained unsigned. That deed never passed into the hands of the Burnhams. Maria knew of the actual conveyance made to Mrs. Crook alone, for she appears to have identified one of the grantors. It is quite evident from what followed that the original purpose of conveying to Mrs. Crook and Mrs. Burnham was abandoned through distrust of the latter’s husband and instead the conveyance was made to Mrs. Crook alone and she conveyed to Lord in trust for Mrs. Burnham. The imperfect and partly executed deed was found in the possession of Lord and any possibility of its delivery is excluded by the after action and conduct of the parties. Ho presumption of a delivery can arise from an utterly unauthorized record shown to have originated in a mistake and made half a century after its original was drawn. The deed made eleven days later, completely and perfectly executed by all parties and that to the knowledge of Mrs. Burnham herself, and the subsequent action of all such parties, removes every reasonable doubt. On the face of the papers themselves the earlier deed must be held, as the court below, have agreed, to have been undelivered and entirely inoperative. Its invalidity sufficiently appears on the face of the records themselves.

But assuming that a perfect title was established in Joseph H. Lord, a further question arises over the construction of his will. He gave the residue of his property to his executors in trust for the benefit of his four children; creating four separate and several trusts, each covering an undivided one-fourth of the residue. The trusts were to pay the income to each child for his or her life, and at his or her death to convey such share with any unapplied

rents to such child’s issue. Bach one of the separate trusts was for a single life, the termination of which by death ended the trust and vested a fee in possession in the remaindermen. After the creation of these trusts the ninth clause of the will provided as follows: “I hereby authorize and empower my said executors and the survivors and survivor of them, and such and whichever of them as shall act, at their or his discretion, from time to time and at any time or-times, to sell and dispose of the whole or any part or parts of my estate both real and personal, at public auction or private sale, in such manner, for such prices and upon such terms, and either for cash or on credit or partly for cash and partly on credit as they or he may approve, and upon any such sale or sales the same or any part thereof to convey and assure to the ¡Durchaser or purchasers, and in the meantime my said executors and the survivors and survivor, and such and whichever as shall act, are and is hereby authorized to collect and receive the rents of the whole and every part of my real estate.” The sole surviving executor is the present defendant who as such tendered a deed duly executed under and in pursuance of the authority of the will.' By the death of one of the daughters an undivided fourth of the estate had vested in her issue,' and the purchaser claims that the power of sale as to such one-fourth ended with the determination of the trust, while the executor claims that the power survived and would continue until all the trusts were ended. We have held on the one hand that such a power of sale when, general and unlimited and unrestricted does not become inconsistent with the devise of a vested estate in the same property, Crittenden v. Fairchild, 41 N. Y., 289; Kinnier v. Rogers, 42 id., 531; Skinner v. Quin, 43 id., 99, and on the other hand that where the power is in terms restricted and limited in point of time to the continuance of the respective trusts, the ending of the trust ends also the power. Bruner v. Meigs, 64 N. Y., 506.

It would be difficult to frame a power of sale more broad and unrestricted than the one before us. It covers not merely the residue embraced in the trust but the whole estate and is unlimited as to time. It necessarily falls under the authorities first cited, unless we can find in its terms some definite indication that all the purposes for which the power was given necessarily ended when any one of the four trusts terminated, and that the remainders were given not subject to the power but entirely freed from it. There seems to have been two purposes which the power was intended to accomplish, one to enable changes to be made in the capital of the estate with a view to the safety of investments and an increase of the earning power, and the other to facilitate an ultimate division without the expense and delay of a partition. Neither purpose was bounded by the limits of a single one of the trusts; each might remain unaccomplished though a single one of the trusts had fallen in.

Some intended limitation of the power, notwithstanding the broad terms in which it is expressed, is sought to be ar of the words “ and in the meantime said executors are authorized to collect and receive the rents of the whole and every part of my estate,” and the argument is that the power was to exist only while the right to receive rents remained This authority was either a repetition of the one already given, or was a new one and deemed necessary. In either view, I think it points to a situation after one or more trusts have ended, and was meant to justify the trustee holding as to an ended trust in the character of a tenant in common to retain the power of sale and receive rents until final severance and distribution.

Two cases in the English courts have rewarded the industry of the respondent’s counsel. Trower v. Knightley, 6 Madd., 134; Taite v. Swinstead, 26 Beav., 525. The last is especially satisfactory. Its fundamental idea is expressed in the phrase, ‘‘The power is unlimited and overrides the whole estate.” We are thus of opinion that the power subsisted beyond the death of Mrs. Tweedy, and that the executor’s deed was good. Having no doubt of the unsoundness of the objections to the title, we are prepared to concur with the majority of the general term.

Its judgment should be affirmed, with costs.

All concur. 
      
       Affirming 32 N. V. State Rep., 201.
     