McIntyre v. Clark

PRYOR, J. Upon the argument the single question in controversy was whether the lease of Catherine Duffy survived the death of the lessor. It is manifest upon the face of the will that, besides the power to sell, lease, or mortgage, the executors were to be in possession of the premises, to receive the rents and profits, and to apply them for the security of the property, and for the support of the beneficiaries of the trust. It results, therefore, if the devise be valid, that the executors took, not a power only, but the estate itself. 1 Edm. St. p. 677, § 47; Id. p. 678, §§ 55, 56; Ward v. Ward, 105 N. Y. 68, 11 N. E. 373. But the devise in its entire scope is not valid, because contrary to the statute prohibitory of perpetuities. If, by reason of the authority to "sell imparted to the executors, the power to alienate be not unlawfully suspended, still “the proceeds would be tied up by the trust in violation of the statute.” Haynes v. Sherman, 117 N. Y. 433, 438, 22 N. E. 938. The power to lease, being an essential element in the scheme of disposition, fell with the trust, of which it was an inseparable incident. Benedict v. Webb, 98 2T. Y. 460. The executors, therefore, as trustees had no authority to make the lease. The respondent nevertheless contends that his lease is valid, because the lessor, Catherine Clark, was vested with an estate for life in the property, and so was competent to create the term.- In respect of the provision for Catherine Clark the learned trial judge upheld the will, and we concur in his conclusion. Kennedy v. Hoy, 105 N. Y. 134, 11 N. E. 390; Haynes v. Sherman, supra; Henderson v. Henderson, 113 N. Y. 1, 20 N. E. 814. It is to be observed that the lease does not purport to be made by Catherine Clark as executor or trustee, but is her individual demise. But the respondent insists that as, upon the death of Dougherty, she became sole trustee, she was vested by merger with a legal estate of the same duration as her beneficial interest. Greene v. Greene, 125 N. Y. 506, 26 N. E. 739. As life tenant, then, assuming her to be such, she had undoubted power to transfer an interest commensurate with her own estate; but, since her own estate was determined by her death, the derivative interest necessarily expired upon the same event. “Besoluto jure concedentis resolvitur jus concessum.” Broom, Leg. Max. 467 ; 4 Kent, Comm. 106. The apparent exception in copyhold law to the elementary rule goes upon the principle that the estate of the grantee is not derived from the lord pro tempore, but stands upon the custom. Rawlyns’ Case, 4 Coke, 52. Any act of a life tenant in derogation of the rights of remainder-men or reversioners is nugatory, (Torrey v. Torrey, 15 N. Y. 430, 432,) and he is incapable of creating a term that shall outlast his own estate, (4 Kent, Comm. 74; Boone, 746 Real Prop. § 43.) The respondent, however, appeals to thé provisions of the Revised Statutes authorizing a power to a tenant for life to make a lease for 21 years. 1 Edm. St. p. 683, § 86. But, as already seen, the attempted grant of power to lease was futile, because implicated with the illegal disposition; and Catherine Clark made the lease in her own right, and as of her proper estate. The unavoidable conclusion is that the defendant Duffy has no estate, right, title, or interest in the premises, and that the refusal of the referee so to find was error. Judgment affirmed, except in so far as it sustains the lease to respondent Duffy and directs a sale subject to said lease, and in that particular reversed. No costs. All concur.