Farmers' Loan & Trust Co. v. Kip

Scott, J.: The judgment appealed from declares invalid an attempted appointment contained in the will of-Frances Jones. George Jones, the father of France? 'Jones, died,in 1886, his heirs being his three daughters, Bebecca Mason Jones, Frances Jones and Margaret' Smith, his grandson Daniel Butler .Fearing, his grandson Lewis Quentin Jones, and his great granddaughter Frances. Coster Jones (now Frances Coster Kip), the two latter being,the only descendants of a de'ceased son. He left a will whereby' he gave to Ins executor the real, estate in the city of New York known as No. 70 Broadway “ during the life of the longest liver of my daughters Frances Jones and Bebecca Mason Jones,” in trust to lease the sanie and to pay the net income arising therefrom to the above-named heirs, in certain' proportions, one-fifth of said income tb be paid to his daughter Frances Jones, and a like proportion to each of Ins other daughters. The will then .provided as follows: “At the death Of the longest liver of my said daughters Frances and Bebecca, I empower my executor to sell the said premises number 70 Broadway, and I give and devise the proceeds thereof,, as follows : One-fifth thereof to the . appointees of, my daughter Frances Jones, by deed or by will and, in-default of such appointment, to her heirs-at law.” The remainder of the proceeds of the sale of the property were similarly disposed of in favor of the other heirs. - Frances Jones outlived her sister Bebecca, and died on April 15, 1906. She liad never married, and left a will by which she apparently attempted to exercise the power of appointment given to her by her father’s will. She gave to the New York Life Insurance and Trust Company, as' trustee, all the rest, residue and remainder of her estate of which she might die [349] seized or possessed, or subject to her disposal by will, in trust for the benefit of Frances Coster Kip during her lifetime, and upon her decease, the same was given to her issue, if she left any, absolutely, but if she should die. without issue her surviving, the same was given to Daniel Butler Fearing and Lewis Quentin Jones in certain proportions. This attempted appointment by Frances Jones is, by the judgment appealed from, declared to be invalid, as contravening the statute against perpetuities. It must be conceded that in estimating the extent of the suspension of the power of alienation, the will creating the power of appointment and the will attempting to exercise it must be read together as if constituting a single disposition. (Real Prop. Law [Laws of 1896, chap. 547], §§ 158,-159; Dana v. Murray, 122 N. Y. 604.) The validity of the attempted appointment by Frances Jones must, therefore be tested by reading the provisions of her will into the will of George Jones, and so reading, We find the absolute power of alienation suspended during the life of the longest liver of Rebecca Mason Jones and Frances Jones, and, after the death of said longest liver, for the'lifetime of Frances Coster Kip. •There can be no doubt that by limiting the trust estate upon the life of the “ longest liver ” of two daughters, George Jones effectually suspended the absolute power of alienation for two lives. (Cross v. U. S. Trust Co., 131 N. Y. 330.) By necessity the trust estate was limited upon the life of the “ shortest liver ” of the two, as well as upon that of the “ longest liver,” and hence must exist during the two lives. It would seein to follow that a further limitation for the life of Frances Coster Kip must be held to be violative of the . statute* and invalid. (Cutting v. Cutting, 86 N. Y. 522; Crooke v. County of Kings, 97 id. 421; Genet v. Hunt, 113 id. 158.) The principal argument urged by the appellants is based upon' the provision in the will of George Jones to the effect that his daughter Frances might make, the appointment of the persons to whom the estate was to go upon her death, as well by deed as by will. The argument is that the use of the word “ deed ” imports a conveyance during the lifetime of the donee of the power and that [350] Frances Jones could, therefore, have exercised the power during her lifetime by making a deed of appointment to herself and thus have invested herself with the fee or at least with the remainder.' This argument rests upon the provisions of 1 Revised Statutes, 732, 733, sections 81 to 85 inclusive (now ré-enácted as sections 129 to 133 inclusive of the Real Property Law), and reliance, is had upon Degnan v. Wade (144 N. Y. 573) and Hume v. Randall (141 id. 499).- In the latter case, however, Judge Beckham clearly-points out the distinction to he observed between these cases and Cutting v. Cutting (supra); Crooke v. County of Kings (supra) and Genet v. Hunt (supra) hy showing that in these latter (as -'in-the cáse at bar).no estate vested i:i the donee of the power, and she had' no power to alien her life interest in the rents and profits and, consequently, there is no room for the application of. the sections above cited from the Bevised Statutes, and-the" same conclusion is compelled by a careful reading oí Cutting v. Cutting (supra). .The whole scope of George Jones’ will seems to preclude any idea that he' intended that any title to the property should vest for á single instant in Frances Jones. During her lifetime 'the title is vested in the . trustee. Her interest was limited to the right to receive the' rents and profits and this' interest' was, by statute,* inalienable. She was not given, in tenhs, power to grant or devise the property or its proceeds, her power _ being limited to- “ appointment ”■ or designation, the gift to the appointee being directly from the donor of the power and to become effective'' only" at the death of Frances Jones. If .her power had been limited to an appointment by will-it seems to be. entirely clear, under the cases above cited, that it could not have been successfully claimed that she ever acquired any title' to the éstate.' To claim that a result so obviously contrary-to the intention of the testator must-be arrived at merely because he provided that the appointment might be 'made by “ dee(l,” is to give ■-to that word, unnecessarily as we" think, its restricted, though common, definition as a deed of conveyance, for technically the use of the word “deed” does not necessarily import a conveyance: (Sanders v. Riedinger, 30 App. Div. 277, 284.) Its primary meaning [351] was “ an instrument consisting of three things, viz. writing, sealing and delivery” (Co. Litt. 171b; 2 Black. Comm. 295), and it is in this sense, as we think, that it should be construed in the present case. In other words, as we construe the will of George Jones, it was liis purpose to give by his- will the remainder, after the death of his .two daughters, to such person or persons as. his daughter Frances should appoint either by an instrument in the nature of a deed executed in her lifetime or by a will, but in either event the gift was to come from him, and the only subject to which the appointment should apply was to be the remainder after the expiration of the trust estate., No other question presented by this appeal calls for discussion. The judgment must be affirmed, with costs in this court payable out of the fund to all parties separately appearing. McLaughlin, Laughlin and Houghton, JJ., concurred; Patterson, P. J., concurred in result. Judgment affirmed, with costs to all parties separately appearing to be paid out of the fund. Footnotes [*] See 1 R. S. 723, §§ 14-16; revised in Real Prop. Law (Laws of 1896, chap. 547), § 32.—[Rep. [*] See 1 R. S. 730, § 63; as amd. by Laws of 1893, chap. .452; revised in Real Prop. Law (Laws of 1896, chap. 547), § 83, as amd. by Laws of 1903, chap. 88.— [Rep, --