Sherman v. Estate of Dodge

The opinion of the court was delivered by Redeield, Ch. J. The principal question in this case is, whether tfie plaintiff was bound to treat the estate, real and per-* [30] sonal, which was conveyed to A. P. Dodge, as a part of the estate of Ebenezer Dodge. It is certain there is a very considerable similarity in the deed in this case, and the one which came under consideration in Gorham, v. Daniels, 23 Vt. 600. But the deeds are not by any means identical. It is not uncommon for instruments, quite as similar as these, to receive different interpretations by the same court. Here the conveyance is, in the most general and unlimited terms, of the whole estate, with what is called, in the deed, a condition; and a condition subsequent, .as this is, is something to be performed by the grantee, and if it is not performed, the conveyance is thereby defeated, and becomes inoperative. In the present case, the spirit of the condition is, that the grantee shall suffer the grantor to enjoy the premises during his life, and if his wife survives him, then suffer her to enjoy the use during her life. And although these are not uses which can be executed under the statute of Henry VIII., that not being in force here, (Gorham v. Daniels,) yet a court of equity will execute them, as is said in that case, and so, clearly, the property is not to be treated as a part of the estate of the intestate, any farther than debts are concerned, which existed at the time of the conveyance. But if we give this deed precisely the same construction which we did that in Gorham v. Daniels, and regard the life estate as an exception from the conveyance, and remaining in the grantor, the result must be the same. For the deed is certainly a good agreement to convey the use for the benefit of the wife, after the death of the grantor, or a covenant to stand seized to the use of the grantor during his life, and, if his wife survives him, to her use during her life, and the remainder to A. P. Dodge, And in all states, where the statute of uses exists, this is held such a covenant, and to create such a use as the statute executes. Roe v. Tranmarr, Willes 682, 5, 6; 2 Wilson 75; 2 Smith’s Lead. Cas. 288, and notes Eng. and Am., where it fully appears that this is a trust of such a nature that, if not made operative under the statute of uses, equity will enforce it. See also the following cases, where such a contract is held as a good covenant to stand seized to uses, and operative under the statute of uses—Ray v. Pierce, 7 Mass. 381; Humphrey v. Humphrey, 1 Day 271; Jackson, ex, dem. v. Swart, 20 Johns. 85. [31] A covenant to stand seized to the use of another, and indeed all uses which the statute of Henry VIII. executes, are to be founded upon valuable consideration, and, without the aid of the statute, constitute trusts in favor of third persons, which a court of equity will always enforce. Of this character are all defective conveyances. As if the deed be defective, in a statutory requisite, as wanting one witness, the estate would not pass. But still it would be regarded as a sufficient contract to convey, which in this state a court of equity would enforce, and in other states would be executed under the statute of Henry VJJL1. And this case is nothing different in the view takep of it by the defendant’s counsel. The estate was attempted to be conveyed to the use of the wife during life, after the- death of the grantor. But it failed in the requisite form. But a court of equity will no doubt enforce it, according to the intention of the parties. For the grantee A. P. Dodge, who gives a valuable consideration for this conveyance, must be regarded as having a pecuniary interest to have the life estate secured to the wife ; this is such a' right as he, and perhaps the wife also, may enforce in equity. It is sufficient, to secure th'e plaintiff from rendering an account of the avails of this property, if the equitable title is not in the estate, beyond what has already been used for paying debts. The contract will, without difficulty, give the legal title of the personal property, and the usufruct or increase to A. P. Dodge, and the use in trust for the wife of the grantor. And being a contract under seal, this is equivalent to a contract of sale executed, or the price paid, with an agreement to have it take effect presently, when nothing remains to be done to identify the property, which is always sufficient, to pass the title as between the parties. And even a gift by deed, for valuable consideration expressed, is operative without delivery of the property. The conveyance to A. P. Dodge of all the grantor’s personal property will, we think, operate upon choses in action. Judgment affirmed.