
    The Syracuse Savings Bank, Resp’t, v. Erastus T. Holden and others, App’lts, and Annie G. Burton and others, Infants, etc., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    Trust deed—Construction of—Power to mortgage.
    Defendant held land under a deed to Cornelia Burton, in trust, for Annie, Grace and Burr Burton, with power to sell and convey or mortgage, without the appointment of a guardian, of the second part, the land with the rents, issues and profits being granted to the “ parties of the second part, their heirs and assigns forever,” etc. Held, that while the deed was informal, yet sufficient appeared to show that it was not the intention that Mrs. Burton should execute the power for her own benefit, and that mortgages given by her to appellant to secure the debts of her husband were not a valid execution of the power, and were void.
    Action commenced in Onondaga county special term, supreme court, appealed to general term, fourth department, and then to this court.
    
      Louis Marshall, for app’lts; Hancock & Munro, for resp’ts.
   Earl, J.

Prior to March 14, 1867, Henry B. Burton owned certain land in the city of Syracuse, and on that day, through the medium of a third person, he conveyed it to his wife, Cornelia H. Burton. On the 8th day of July, 1876, she, without any consideration, conveyed the land to Emily Howland, her mother, and on the fifteenth day of the same month Mrs. Howland, without any consideration, conveyed the land by a deed which we are now called upon to construe. The deed purports to be an instrument between Emily Howland, of the first part, and “ Cornelia H. Burton, wife of Henry B. Burton, of Syracuse, N. Y., in trust for Annie G. Burton, Grace Burton and Burr Burton, with power to sell and convey or mortgage, without the appointment of a guardian, of the second part;” and it grants the land, with all the rents, issues and profits thereof, to the parties of the second part, and “to their heirs and assigns, forever,” to have and to hold the same to the parties of the second part, “their heirs and assigns,” to the sole and only proper benefit and behoof of the parties of the second part, “their heirs and assigns, forever.” There is no other reference to a trust or power except that contained in the first clause of the deed above set out. In the construction of this deed we are enjoined by statute “to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.” 1 Rev. St., 748, § 2. Both parties agree that no valid trust was created, as no trust purpose was specified which is mentioned in the statute authorizing the creation of express trusts. 1 Rev. St., 729, § 55. A mere formal passive trust was attempted to be created, which the statutes execute by vesting the title in the beneficiaries. Sections 47, 49. They also agree that a valid general power was created under "the statute defining and regulating powers (1 Rev. St. 732, §§ 74, 77), and we will proceed upon that assumption. They differ, however, as to the nature of the power. The appellants claim that no one but the grantee of the power was interested in the execution thereof, and that, therefore, it was a beneficial power under section 79.

While the deed is quite informal, and imperfect in the expression of the intent of the parties, yet we think sufficient appears to show that it was not their intention that Mrs. Burton should execute the power for her own benefit. The conveyance was made in trust for the three persons named, who were the children of Mrs. Burton. They were the real beneficiaries of the grant, and the power to sell and convey or mortgage was probably given because they were infants, and the object was to authorize a conveyance of the land, when desired, 'without the appointment of a guardian for the infants, and thus to avoid the expense and delay which would ensue if the land were, required to be sold or mortgaged only by a compliance with the statutes regulating the sale and mortgaging of the lands of infants.

The case of Jennings v. Conboy (73 N. Y., 230), is notan authority for the contention of the appellants. In that case there was no indication whatever in the will that the power to sell was to be executed for the benefit of any other person than the grantee of the power, and that distinguishes that case from this. Here we find a satisfactory indication that the power was to be executed wholly for the benefit of the infants, and it is therefore, as claimed on their behalf, a general trust power under section 94 of the statutes, and the land passed to and vested in the infants subject to the execution of the power. Sections 47, 49, 58 and 59. Therefore the mortgages given by Mr. Burton to the appellants to secure the debts of her husband were not a valid execution of the power, and were void.

The judgment of the general term should be affirmed, with costs.

All concur except Andrews, J., taking no part.  