Livingston v. Ward

McAvoy, J. The judgment and order here for review declare that the defendants are vested with the title in fee simple to the property known as No. 49 Broadway, Manhattan, city of New York, which in May, 1885, one James Thomson, now deceased, conveyed by deed of trust to Edmund Randolph Robinson, as trustee, for purposes described in that conveyance. We cannot agree that such a conclusion is warranted from a reading of the instruments upon which this order and judgment are based. All the scripts necessary for the determination of the devolution of title are annexed to the supplemental complaint, and all the facts upon which that complaint is founded are uncontested. The deed of trust set out the intended marriage of the [677] parties, Aime D. Parsons and James Thomson, and that in order to make provision for Anne D. Parsons, the grantor James Thomson had agreed to convey to Robinson, as trustee, certain premises therein described upon certain trusts, etc., and subject to certain powers, etc., all contained in the instrument. Under this agreement and in consideration of marriage, and ten dollars paid to Robinson, James Thomson, in*the words of the deed of trust, the effect of which we are to determine: “ Granted, bargained, sold, aliened, remised, released, conveyed and confirmed and by these presents doth grant, bargain, sell, alien, remise, release, convey and confirm unto the said Edmund Randolph Robinson all that certain lot of land with the building and improvements thereon erected [here a description by metes and bounds] being known and distinguished by the street number 49 Broadway in said City. Together with all and singular the rights, members, tenements, privileges, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and demand whatsoever as well in law as in equity of the said James Thomson of, in, to or out of or upon the said land and premises and every part and parcel thereof. To Have and to Hold the said land and premises to the said Edmund Randolph Robinson to the uses and purposes hereinafter declared, that is to say, from and after the solemnization of the intended marriage above mentioned to manage said premises and collect and receive the rents, income and profits arising therefrom and after paying all lawful and necessary expenses connected with the management of said premises to pay out of such net rents, income and profits to the said Anne D. Parsons the yearly sum of Three thousand dollars in two equal half yearly payments on the first day of June and December in each and every year during the term of her natural life, the first half yearly payment to be made on the first day of December next, such payments to be made to the said Anne D. Parsons or any agent whom she may authorize in writing under her hand and seal to receive the same in order that she may enjoy the same to her separate use, exempt from the control, debts and engagements of her said intended husband, * * * and the residue of the rents, income and profits to pay to the said James Thomson and his assigns during the term of his natural life and from and after the decease of the said James Thomson in the lifetime of the said Anne D. Parsons to pay the entire rents, income and profits of the said premises to the said Anne D. Parsons or her assigns during the term of her natural life,, and from and after the decease of the said [678] Anne D. Parsons to convey said lands and premises to the said James Thomson his heirs and assigns forever.” . Shortly after May 11, 1885, James Thomson and Anne D. Parsons were married, and Edmund Randolph Robinson accepted and entered upon the discharge of the trusts created by said deed of May 11, 1885. On July 24, 1896, Edmund Randolph Robinson died before said trust was fully determined and ended. James Thomson died on December 9, 1897, and thereafter and on or about January 19, 1898, Anne D. Thomson, Henry Galbraith Ward and Charles M. Hough executed a certain indenture, which indenture recited the deed of May 11, 1885, and the provision therein contained that in the event of Edmund Randolph Robinson dying before the trust thereby created should be fully determined and ended, it should be lawful for James Thomson and Anne D. Parsons, now Anne D. Thomson, by any writing under their hands, or after the decease of said James Thomson for the said Anne D. Parsons by any writing under her hand, to appoint • some other person in place of Edmund Randolph Robinson, and that upon such appointment the lands and premises therein and thereinafter described should be conveyed so as to vest title to the same in the new trustee. The indenture also recites that James Thomson and Anne D. Parsons did shortly after May 11, 1885, unite in lawful matrimony, and the said Edmund Randolph Robinson did accept and enter upon the discharge of the trust created by the indenture of May 11, 1885, and thereafter on July 24, 1896, did depart this life before said trust was fully determined and ended, rendering necessary and proper the appointment of a new trustee or trustees to administer the trust; and the deed then declares that James Thomson departed this life on December 9, 1897. Further clauses recite that Anne D. Thomson appointed the defendants Ward and Hough as trustees in place of Robinson, and the indenture confirmed unto them all the lands and . premises mentioned in the May, 1885, deed. It then directed that these trustees manage the premises, collect the rents and pay the expenses of management and then pay the balance of profits to Anne D. Thomson during her life; “ and from and after the decease of the said Anne D. Thomson, to convey said rents and premises to the heirs and assigns of said James Thomson. It is hereby understood and agreed and hereby directed that the parties hereto shall observe and obey the provisions of the said indenture of May 11, 1885, in respect of compensation of said trustees as fully as if herein again set forth at large and that the liability of the trustees hereby appointed shall be the same, and no greater as was the liability of the original trustee, Edmund Randolph Robinson, deceased. [679] And the parties hereto of the second part hereby accept the trust created by said indenture of May 11, 1885, and now vested in them, and now also enter upon the performance of the duties of said trust as hereinabove provided.” Anne D. Thomson died May 6, 1923, leaving a last will and testament which was duly admitted to probate in the Surrogate’s Court of New York county, and letters testamentary were duly issued to Charles M. Hough, who alone qualified as executor. The residuary legatees of Anne D. Thomson and the trustees under the deed of trust, assert that the premises No. 49 Broadway, New York city, passed to the so-termed Parsons defendants by virtue of the residuary clause in Anne D. Thomson’s will and the clause in the will of James Thomson which reads: “Fifteenth. All the rest, residue and remainder of my Estate real and personal, of every name, kind and description which I may own at the time of my decease, wheresoever the same may be situate, I do give, devise and bequeath unto my beloved Wife Anne D. Thomson (daughter of George M. Parsons, of Columbus, Ohio), to have and to hold all and singular the real and personal Estate hereby devised and bequeathed unto my said Wife Anne D. Thomson, in lieu of Dower.” The plaintiffs lay claim to title and possession of the property described in the deed of May 11, 1885, by reason of the words in the recital of the grant and conveyance in the deed of trust heretofore quoted, executed by James Thomson to Robinson, as trustee, which aliened every vestige of title in James Thomson during the life of Anne D. Thomson, part of the income going to her during the life of the grantor, the balance to him, and the entire income being reserved to her on his death preceding hers, upon the death of Anne D. Thomson the premises then to be conveyed by the trustee to James Thomson, his heirs and assigns forever. This grant to the trustee cannot be construed as leaving any seizin in the grantor which could be devised. If Anne D. Thomson should die before the grantor, the deed provided for a conveyance of the reversion to him, the possibility of such reverter being a mere naked right, whether called remainder or reversion, which could not pass by his testament, since at the time it spoke (at his death) he was devoid of seizin because no reverter had taken place by reason of the continuance of the life estate in Anne. The words of limitation in the deed, “ his heirs and assigns,” are in the common form used invariably in conveyances and designed to import a duty in the trustee to convey a fee to James Thomson at the termination of the life estate for Anne. The term “ assigns ” in the deed as corelative to heirs has not the [680] significance of a substitution of transferees other than heirs, but maintains its technical use as befits the formal legal terminology in which the testament is couched throughout, and its employment thus connotes merely the limitation of a fee to be conveyed to James Thomson in the contingency mentioned. A conveyancer or draftsman of instruments of" title would not thus provide for a reversion to possible devisees under the will of the grantor of a trust deed, if a reversion capable of being assigned or aliened to transferees were intended to survive the original grantor. A careful drawer of such instruments affecting realty would provide for the devolution of the land unequivocally in the event of the death of such a grantor, if the grantor intended to make a substituted gift after his death, to the residuary devisees (assigns) under his testament. The judgment and order should be reversed, with costs and an interlocutory judgment should be granted declaring that the plaintiffs and such of the defendants as are heirs of James Thomson, deceased, are entitled to the possession of the premises No. 49. Broadway, New York city; striking out the defenses in the answers of the defendants Henry Galbraith Ward and Charles M. Hough, as trustees, and of Charles M. Hough, as executor, and of the Parsons defendants, dismissing the counterclaim interposed by such defendants, and restraining defendants other than the Livingston heirs from asserting any claim to or title in the premises; and the matter remitted to the Special Term to try the issues as between the plaintiffs and the other Livingston heirs and to' declare their respective rights and title in said premises, and also to direct Henry Galbraith Ward and Charles M. Hough, as trustees, to convey the premises to such parties and in such proportion as the court shall declare them to be entitled and to file and render their accounts as trustees, that the same may be judicially settled and allowed. Dowling and Merrell, JJ., concur; Martin, J., dissents.