
    Herman F. Kanenbley and Others, as Executors, etc., of August Kanenbley, Deceased, Plaintiffs, v. Albert Volkenberg and Frances Volkenberg, Defendants.
    
      Deed to parties “ trustees of the separate estate of Ma/rga/retta Persse”-r-the words quoted are descriptive — a deed signed try the grantees as individuals conveys a good title —presumption as to the execution of an express trust.
    
    At the beginning of a conveyance of certain premises following the names of the grantees were the words “ trustees of the separate estate of Margaretta Persse, wife of Dudley Persse.” Nothing else in the deed indicated the existence of a trust or an intention to limit the estate conveyed to the grantees, and there was no extrinsic evidence of the existence of such a trust. Thereafter the trustees mentioned in said deed and Margaretta Persse conveyed the premises to one O’Gorman for a nominal consideration of one dollar. No other consideration appeared. The trustees signed this deed as individuals and were not described therein as trustees.
    
      
      Held, that the words " trustees of the separate estate of Margaretta Persse, wife of Dudley Persse,” contained in the first-mentioned deed, were to be regarded as descriptive merely, and that the persons so described acquired thereunder an estate in fee as individuals;
    That,- consequently, the deed executed by them for a nominal consideration operated to convey a marketable title which a subsequent purchaser of the premises would be required to accept.
    
      Seirible, that if an express trust might be presumed to have been created it would also be presumed that the deed was executed in pursuance of its terms and not in violation thereof.
    Van Brunt, P, J,, -dissented on the ground that the submission upon which the question was presented was irregular in form.
    Submission of .a controversy upon an agreed statement of facts, pursuant to section 1279 of the Oode of Civil Procedure.
    
      George H. Hyde, for the plaintiffs.
    
      Augustus S. Hutchins, for the defendants.
   Hatch, J.:

The plaintiffs by this submission seek to procure a judgment compelling the specific performance by the defendants of a contract of sale entered into between the plaintiffs and defendants -of certain premises on East Seventeenth street in the city of New York. At the time and place agreed upon in said contract the plaintiffs tendered a . deed of the said premises which the defendants refused to. .accept, claiming that the same did not convey a marketable title. The specific defect is claimed to exist in a certain deed by and through which one Eichard Ó’Gorman became vested with title to the premises.

On June 2, 1856, the fee of the premises in question was vested in Peter Stuyvesant and Benjamin E. Winthrop, as trustees of the separate estate of- Julia E, Stuyvesant, wife of Péter Stuyvesant, and upon the above-mentioned day Stuyvesant and Winthrop, as said trustees, together with Stuyvesant and Julia his wife, in their owir right, conveyed the premises to Theophilus B. Persse and Eobert Gillen, “ trustees■ of the sepa/rate estate of Margaretta Persse, wife of Dudley Persse,” . On February 29, 1860, said trustees and said Margaretta Persse joined in a conveyance of the premises to Eichard O’Gorman, the consideration expressed therein being the sum of one dollar; no information of any other or further consideration can be discovered. The si gnature of the trustees to this deed is as individuals, and they are not described as trustees. On June 19, 1861, for a consideration of ten dollars, O’Gorman and wife conveyed the premises to the said Margaretta Persse, wife of Dudley Persse, which deed was acknowledged in April, 1864. On June 4, 1864, Theophilus B. Persse and wife quitclaimed these premises to Margaretta Persse for a consideration of ten dollars, and on May 1, 1868, Margaretta Persse, widow of Dudley Persse, for full and valuable consideration (§26,050), conveyed the said premises to the plaintiff’s testator, August Kanenbley, who held the’title to the same during his lifetime. The plaintiffs were duly appointed executors under said Kanenbley’s will, which contained a good and sufficient power of sale.

It is claimed by the defendants that the deed from Stuyvesant and Winthrop, as trustees, to Persse and Gillen, trustees of the separate estate of Margaretta Persse, wife of Dudley Persse, shows the existence of a trust, undisclosed as to its terms, and as their subsequent deed to Richard O’Gorman was for a nominal consideration only, it must be presumed, in the absence of all other proof, that such conveyance was in violation of the terms of the trust, and, consequently, conveyed no title to the grantee therein. This claim is based upon the supposition that the words in the first deed, trustees of Margaretta Persse, are sufficient to show the existence of a trust, and that said trustees took only the bare, naked, legal title, in consequence of which they could only deal with the property founded upon a sufficient consideration and in accordance with the terms of the trust. It is stated that the most diligent search fails to disclose the existence of auy trust estate created for the benefit of Margaretta Persse, and that the only thing which appears, out of which is raised the existence of the trust, is the language contained in the deed to Persse and Gillen, which we have quoted. It is noticeable that the recital is not to them as trustees of anything. The language in form is simply descriptive, and if it be so construed or is susceptible of such construction, then it would create no limitation upon the title in them, and they would take as individuals and an estate in fee.- Of course, in order to reach this result all of the terms of the deed and the. rules of law applicable thereto are to be considered. In modern construction of deeds it is the office of the premises of the deed rightly to name the grantor and grantee and to comprehend the certainty of the thing granted, and if the habendum clause may not be reconciled with the premises of the deed, so that full effect may be given both, the extent of the grant will be determined by the premises, and the habend/wm clause will be made to yield thereto. (Clapp v. Byrnes, 3 App. Div. 284; affd., 155 N. Y. 535.) It is clear that the language contained in the premises of the deed is, in literal effect, ■ merely descriptive ■ and can easily be construed as such under well-settled authority. (Towar v. Hale, 46 Barb. 361; Greenwood Lake & Port Jervis R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435; Pfeiffer v. Rheinfrank, 2 App. Div. 574; King v. Townshend, 141 N. Y. 358.) The granting clause is do grant, bargain, sell, alien, release, convey and confirm Unto the said parties of the third part and to their successors and assigns, ? * *.” The habend/wm clause reads to have and to hold the above mentioned and described premises hereby granted and conveyed, or intended so to be with the appurtenances unto the said parties of the third part, their successors and assigns, to their only proper use and benefit and behoof forever,” There is nothing in - any of these w&rds which limit their estate. The authority is to hold to their successors and assigns. There ig no particular significance attaching to the word successors, in the absence of anything in the other part of the deed showing that a limited estate was granted, and the grant is to the assigns as well as the- successors. The grantee in the deed from Persse and Gillen were the assigns of such party in strict legal signification, and under the authorities which we have cited, it is held that no peculiar signification attaches to the word successors in the absence -of proof showing that a limited estate was granted. In the present case, taking all the language together, we think it clear that no trust was created and that the words trustees, etc., are to be regarded simply as. descriptive, in the absence of all proof tending to show the existence of a trust estate. And giving force and effect to the terms in the deed which authorized a conveyance to their assigns, we- have an absolute compliance with the estate as granted. It is significant also that in the deed by Persse.and Gillen, they do not assume to execute the same as trustees of anybody. Their act is that of individuals, and is a circumstance to be considered in interpretation of the deed under which they took the estate. As, therefore, there was no declaration of language used in the deed from Winthrop and Stuyvesant to them which created a trust, or which showed that they took as trustees, there was no defect in the chain of title aiid the plaintiff is entitled to a judgment of specific performance. There is some authority for holding that the court may, in the absence of all proof as to' the terms of the trust, presume the existence of an'express trust, valid as such in its creation, and thereby reach the conclusion that the trustee is vested with the whole estate, both- in law and equity. (People v. Stockbrokers’ Bldg. Co., 49 Hun, 351; affd. by the Court of Appeals on opinion below, 112 N. Y. 670; and cited with approval in Greenwood Lake & Port Jervis R. R. Co. v. N. Y. & G. L. R. R. Go., supra.) If under such circumstances a valid trust may be presumed, we think there is no violence done in making the further presumption that the trustee, in making a grant of the trust property, complied with the terms of the trust, and if this rule should be adopted in this case, it would result in holding that there was no defect in the title, as the presumption would be that the deed was made pursuant to the terms of the trust and not in violation of it. We prefer, however, to rest our judgment upon the ground that the language of the deed did not create a trust estate in Persse and Gillen, but that they were vested with an absolute title in fee to the estate under the deed to them, and in consequence of which could convey good title. It follows that judgment.should be awarded in favor of plaintiffs for the specific performance of the contract, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. I do not think that the submission is in any form which justifies the court in considering the alleged controversy. Questions are submitted to the court and according as it answers them it is to give judgment. There is no warrant for any such form, of procedure in the Code. The parties must submit the facts to the-court, and the court renders such judgment as the facts warrant;. and- this right cannot be limited by any consent or agreement of the' parties to the submission. This was not done in the case at bar, and the submission is absolutely irregular.

Judgment ordered for plaintiffs for specific performance of -the contract,- with costs. 
      
      
        Sic.
      
     