Bennett v. . Garlock

Danforth, J. Upon the facts found and conceded the plaintiff is entitled to recover the premises in question, unless *315 they were held adversely for twenty years before the commencement of the action. This was the defense spread out in the answer and relied upon at the trial. The trial court found and there was evidence to sustain the finding that the person under whom the defendant claimed, on the 26th day of March, 1842, entered into possession of the premises under claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, —that from that time there had been a continual occupation and possession of the same, and therefore the defendant had judgment. The question of fact thus found has not been disturbed by the General Term. The judgment was reversed upon the ground that the plaintiff’s estate in the premises was a vested remainder created by deed from her ancestor to Messrs. Breese and Varick, trustees, dated May 24, 1808, but that her right of entry and possession did not accrue until 1871, and as the action was comménced in 1874 the statute was not a bar. The judgment to be given upon this appeal then depends upon the construction of that instrument. It was executed by Matthew and Martha Co dd — Martha was the owner in fee of the premises conveyed, of which the land in controversy forms a part, Matthew was her husband, and the plaintiff their child and living, at the time of the execution of the deed. By that deed the grantors in consideration, as it is stated, of one dollar and in order to effect the uses and trusts mentioned, did grant, release and convey unto the trustees above named and their heirs and assigns all the lands, etc., whereof they the said Matthew and Martha were or either of them was seized or entitled to either in law or equity, in trust. First. To sell and dispose of so much of said lands, etc., as shall be sufficient to pay all debts and demands then subsisting against the grantors or either of them. Secondly. In trust as to the residue of said lands to lease, manage, cultivate and improve the same in such manner and upon such terms and conditions as to the said trustees or the survivor of them or the heirs or assigns of such survivor shall from *316 time to time seem proper and most for the interest and benefit of said Matthew and Martha or the survivor of them, the net profits and avails whereof are to be paid to Matthew during his life-time for the support and maintenance of Matthew and Martha and their children, and if Martha survives Matthew, then to her during her natural life-time for the maintenance of herself and children. Third. That the said trustees and the survivor of them, and the heirs and. assigns of said survivor, shall hold all the residue of said lands over and above what may be sold as aforesaid for the payment of said debts, for the sole use, benefit and behoof of such persons as shall be the right heirs of them the said Matthew and Martha at the time of the death of the survivor of them; that is to their children or grandchildren or such other person as by the laws of the State of Hew York would be heir or heirs of the said Matthew and Martha Codd at the time of the death of the survivor of them if this deed had not been made. Reserving to the grantors however power by will or appointment to direct -to whom upon the death of the grantors the trust estate or the residue of the lands should go. Fourth. Upon request made by the grantors the trustees were authorized in their discretion to sell and convey any portion of said lands 11 over and above what may be necessary for payment of debts. ” The validity of this instrument is not called in question by the plaintiff, nor could it be, nor can she be permitted to deny the existence of facts assumed by it, and in consequence of which the various trusts were created. For she introduced it in evidence as part of her case and as the foundation of her title. It was however before the Commission of Appeals, and it was by that court held that the trusts were valid, that the trustees took the legal title, and that Martha Codd had no title or interest in the premises, save the power of appointment by will. (Bain v. Matteson, 54 N. Y., 663.) This power was never exercised. The defendant prevailed at the trial upon the ruling of the trial judge that the whole estate in law and equity was vested in the trustees subject only to the execution of the *317 trust, that the persons for whose benefit the trust was created took no interest or estate in the lands, but a right in equity to enforce the performance of the trust; and the judgment was reversed upon the theory that the trustees took no greater interest in the lands conveyed than the purposes of the trust required ; that if any debts existed they must be presumed, extinguished prior to 1871; that the other trust ceased with the death of Martha Codd and that the plaintiff took a vested remainder in fee, which by virtue of the statute of uses was a legal estate and was by it executed at the death of Martha Codd. The existence of the general doctrine in regard to the extent of the estate of the trustees is not questioned, but its application to the case in hand is denied. First, it is to be noticed that the grant is unto Breese and Yarick “and their heirs and assigns” of all the lands, etc., whereof the grantors “are of” whereof either of them is seized or entitled to either in law or equity, etc., “ in trust for the uses above stated.” By these words the trustees jprima facie at least take an estate in fee and are invested with all the legal and equitable rights of the- grantors (1 Perry on Trusts, § 515), and even without these words if the trusts could not be fully executed, except by the trustees taking an inheritance, their estate would be enlarged into a fee simple to enable them to carry out the intention of the grantors “and this” says Kent, C. J. “has been frequently ruled in chancery. And the Court of Kings Bench, in the time of Lord Mansfield, made the same decision at law.” (Fisher v. Field, 10 John., 504.) In the case before us, there is a trust to sell, and a trust to lease; to perform these duties the trustees must have a fee—a less estate would not be sufficient to satisfy the purposes of the trust. (1 Perry on Trusts, § 315 ; Collier v. Walters, L. R. [17 Eq. Cas.], 252. How what are the trusts her e the first is to sell so much of the lands as shall be sufficient to pay and Satisfy all debts, dues and demands then subsisting against the grantors or either of them. By the terms of the deed it is made the duty *318 of the trustees to sell,—for that purpose a fee is necessary— again it is said that'if “afee be given in terms with trusts which by their nature extend over an indefinite time the estate cannot be cut down.” (Doe v. Davies, 1 Q. B., 430.) Here no time is fixed for the payment of the debts provided for, and the case in that respect is like Collier v. Walters (supra). It is plain that no precise period for the continuation of the trust is mentioned nór could it have been ascertained at the time of the execution of the deed. Again, this power extends, to the. whole land conveyed and is not confined to any particular piece or parcel of it. The force of the argument then would not be weakened if we knew that the debts could be paid from the proceeds of a small portion and that, the whole of the land would not be required for that purpose, the question being what estate was conferred upon the-trustees; what ever estate was conferred must vest as to the-whole. In Collier v. Walters , (supra), it is stated by the-master of the rolls as a rule collected from all the authorities- “ that you cannot cut down tie estate in fee simple unless-you can point out on the face of the will what less estate the-trustees take.” That has not been done in this case. In Nichol v. Walworth (4 Denio, 385), Jewett, J., says: “ The rule at common law as well as by statute is that the trustee takes that quantity of interest only which the purposes of the trust require and the instrument creating it permits. The legal estate is in the trustee so long as the-execution of the trust requires it, and no longer, and then it-vests in the person beneficially entitled.” And this is cited by the respondent in support of the doctrine on which the. judgment of the General Term was placed. The grant in. that case was unlike the one before us — there were no words, of inheritance — it was unaccompanied by any power to sell or of management on the part of the trustee. The trust was-simply to receive the rents, issues and profits of the land and apply the same to the support of a person named, upon the-express condition that the same should not be sold during-her life, but held for the purpose stated, and the grantor- *319 added, after her, death “ I give, grant and .convey the said premises to my natural daughter Mary,” etc. There the trustee took an estate for the life of the person named in trust for her, and the limitation in remainder after her death was directly to Mary in fee. Norton v. Norton (2 Sand., 296), also cited by respondent, is not in conflict with these views. The plaintiff claimed a life estate in the premises as tenant by the curtesy. " This was denied, and upon the hearing it appeared that J. L. N. had theretofore granted unto one Hannah Clinton, her executors, etc., all the estate which as husband of Sarah Norton he had in her land in trust for Sarah, giving her power through heisaid trustee to dispose of the property, collect rents, etc. The questions before the court turned on the effect of this conveyance. It was held that it did not convey the fee ; the court saying : “ The purpose of this trust was first for Mrs. Norton and second to empower her through her trustee to dispose of the property, manage it, and collect the rents; the first object and all of the second, except the power of disposal, were attainable by a trust which should cease on her death. For those objects therefore the estate of the trustee cannot be deemed to have extended beyond her life ; the power of disposing of the property is limited to her alone ; there is no limitation in favor of her heirs or devisees, nor any language from which an intention is to be inferred that others were to execute the power.” It was held that the trust ceased on Mrs. Norton’s death, and that the plaintiff had a legal estate as tenant by the curtesy. There were no words of inheritance ; none from which an intent could be inferred of a greater estate than for the life of Mrs. Norton, nor any object to be accomplished which required it. In the case before us it is quite otherwise. It is claimed by the respondent that the estate of the trustees ceased when the purposes of the trust were accomplished, and assuming that the debts were paid the death of Mrs. Codd put an end to the trust estate. This must be so, but then and for nearly thirty years before that time, the trustees, holders of the *320 legal estate, had neglected to assert their title. As against them the defendant had a good title by adverse possession. (Perry on Trusts, § 858; Hill on Trustees, *267; Lewellen v. Mackworth, 2 Eq. Ca. Abr., 579; Hounden v. Lord Annesley, 2 S. & Lef., 629; Pentland v. Stokes, 2 Ball & B., 175.) What estate has the plaintiff? Hot a legal estate in fee, for as we have seen the whole legal éstate vested in Breese and Varick as trustees. Martha Codd had an equitable estate for life, her children, of whom the plaintiff was one, an equitable remainder liable to be defeated by dying before their mother, or in part by after-born children who at the time of the mother’s death should be living. The estate or interest cannot be more than this. Although the plaintiff was living when the trust was created, she is not named in the deed nor is she referred to as one then in existence. There is even no provision made for children then in esse. The , beneficiaries are those who as child or grandchild, or those failing, others, are entitled .to inherit who shall be living when the mother dies. The plaintiff happens to be one of them; and for that reason and not because she was living at the time of the execution of the deed, she takes an interest, which for the reason above stated can be an equitable one merely. Wood’s Case in the Supreme Court under the name of Wood v. Mather (28 Barb., 473), and in the Court of Appeals as Anderson v. Mather (44 N. Y., 249), sustains this construction. The defense, good against the trustees, is good against the plaintiff also. They, had the whole legal and equitable estate ; she, an equitable interest only upon the strength of which she could enforce the performance of the trust in equity. At the death of her mother, Martha Codd, the plaintiff became entitled to the receipt of the rents and jmofits and to the actual possession of the land then in the hands of the trustees ; she could have no more. Whatever way it was conveyed to her, by the trustees themselves or by force of the statute, she took subject to the acts of the trus *321 tees and.became bound and affected by their affirmative acts, and by their neglects. If by their neglect or consent an estate had been acquired by the defendant, or he had obtained an advantage which prevented the trustees from asserting their title, the plaintiff standing in their place is equally estopped and prevented. In Jackson v. Johnson (5 Cow., 74), the grant was to A. and his heirs in trust for the children of B. Savage, C. J., says : “A. was authorized to sell the lands to reimburse advances which it was contemplated he would make, and in fact did make. He took the legal estate and the heirs only an equitable one.” * * ~ His (A.’s) acts were valid and binding upon those heirs, and when he conveyed to them the legal estate they took it subject to such equitable interests as the defendant and others had acquired in the lands by virtue of the acts of the trustees. In Smilie v. Biffle (2 Barr., 52), the court say: “ Where cestui que trust and trustee are both out of possession for the time limited, the party in possession has a good bar against both.” If for any reason the estate of the trustees had been void at its creation, the remainder in the plaintiff, however it may have been termed, would have been void also ; for it is limited upon the trust estate. So if the estate of the trustees is defeated in any way, or if their right of action for its possession is barred, the remainder must be defeated and the plaintiff’s right barred, because it rests upon the same title. But the plaintiff insists that this docs not affect her, and as the foundation of her claim asserts, first, that on the execution of the trust deed she became vested with a legal estate in remainder limited by way of use, and second, that the statute did not run against her right, of action until by her mother’s death, she was entitled to possession, and if this isso^ she is entitled to recover. But how can that bo ? That the-trustees were clothed by appropriate words with all the legal and equitable interests of Matthew and Martha Codd, cannot be denied, and with the language the purpose of the trust" concurs. Thov may sell, of course they may give a good. *322 title as full and perfect as that possessed by the grantors. (Brewste r v. Stryker, 2 Comstk., 19.) A title during the life of Martha Codd would clearly not be such an one. A title subject to a vested remainder in fee would .be anything but unincumbered, and yet if the plaintiff is right, such a title is the only one the trustees could give, for that remainder extended to all the 'lands referred to in the deed. And nothing short of this will aid the plaintiff; for if she did not take a vested remainder at the time of the execution of the deed she would afterwards stand in the place of the trustees and be subject to their acts with no better right of action than they had. There is no ground on which the plaintiff can recover. The order of the General Term should be reversed, and :tite judgment of the Special Term affirmed.