Opinion
Argued February 11, 1878
Decided February 19, 1878
S.P. Nash, for Garvey, executor, etc., appellants. Jesse Johnson, for McDevitt, trustee, etc., appellant. Chauncey Shaffer and Abel Crook, for respondents.
The construction of this will is not entirely free from difficulty. I have given its provisions careful consideration, but so much has been written upon the subject of trusts that I deem it important to say but little more than sufficient to announce our conclusions.
The testator orders and directs his executors at the expiration of four years after his decease to sell his real estate at public or private sale, and pay over the proceeds to the Bishop of Raphoe, upon the trusts mentioned; and until the sale, he orders and directs his executors to rent the real estate, and after paying all taxes, assessments, water rates, insurance and other charges thereon, to deposit the balance of the rent received in a savings bank, and then to pay the money thus deposited, with the residue of his personal estate and the proceeds of the sale of his real estate, to the Bishop of Raphoe, upon the trusts mentioned.
The first question to be determined is, whether this disposition of the real estate is valid under the laws of this State? The direction to rent and manage the real estate, and receive and deposit the rents during the four years, was an attempt to create an active express trust, and the language is such, if the trust is valid, as to vest the title in the trustees. ( Brewster v. Striker, 2 Com., 19; Tobias v. Ketcham, 32 N.Y., 319; Smith v. Scholtz, 68 id., 41.)
This is a trust to lease lands for the benefit of a legatee, and hence it is one of the kind of trusts authorized by the statute (1 R.S., 728, § 55), and the trustees cannot alienate the lands during the trust term (1 R.S., 730, § 65), and the cestui que trust cannot dispose of his interest. (1 R.S. 730, § 63.) There is, therefore, a suspense of the power of alienation not limited by life, and hence the trust is void. (1 R.S., 723, § 15; Hawley v. James, 16 Wend., 61; Hone's Executor v. Van Schaick, 20 id., 564; Boynton v. Hoyt, 1 Denio, 53.) The trust failing, we ought not to uphold this as a power in trust under sections 58 and 59 (1 Revised Statutes, 729), because the testator's intention was to vest the title in his trustees. It was essential that they should hold the title to enable them adequately to exercise the powers conferred, and a power to receive the rents and accumulate them for the purposes mentioned is invalid. (1 R.S., 726, §§ 37, 38.)
It follows, therefore, that the real estate descended to, and vested in, the heirs of the testator, subject to the power of sale, and that they are entitled to the possession and the rents thereof. But the invalidity of this clause in the will does not so far interfere with the entire scheme of the will under consideration as to invalidate the whole thereof. The disposition of the residue of the personal estate, and of the proceeds of the sale of the real estate, must still be upheld, if not in conflict with any law. The direction is that his executors shall, at the expiration of four years after his decease, sell his real estate and pay over the proceeds to the Bishop of Raphoe.
A power of sale to be exercised after a definite term is not necessarily an illegal restraint upon alienation; it does not necessarily suspend the absolute power of alienation. When the beneficiary under a power is also vested with the title to the real estate as heir or devisee, he may before the power has been or could be exercised convey the real estate by warranty deed, and thus defeat or annul the power of sale. ( Hetzel v. Barber, 69 N.Y., 1.) A general power in trust is never to be exercised for the benefit of the donee of the power. He has no beneficial interest in its exercise. He must exercise it for the sole benefit of the beneficiaries of the power, and when for any reason it is impossible to exercise it for their benefit it cannot be exercised. Take a case where the title to land is vested by descent or devise in A., subject to a power of sale conferred upon B., which is to be exercised after some definite number of years for the benefit of C. In such case there is no suspense of the power of alienation. There are persons in being who can by their concurrence convey an absolute fee; there is no law which prohibits C. from alienating or releasing his interest, but he is expressly permitted to do so. (1 R.S., 730, § 63.) He could unite with A. in a warranty deed of the land before the time for the execution of the power had arrived, and thus convey a perfect title. B. could not thereafter execute the power of sale because C. had by his own act deprived himself of the right to claim or receive the proceeds. Instead of uniting with A. in the conveyance C. could release to A. his claim to the proceeds of the real estate, and then A. would have a perfect title.
If, therefore, the will had directed the proceeds of the sale of this real estate to be paid over absolutely to the Bishop of Raphoe for his own use, there would have been no difficulty with this power to be exercised after the lapse of four years. In that case he, being the sole beneficiary of the power in his own right, could have released his right to the proceeds to the heirs of the testator, and thus perfected in them an absolute title, which could not afterward be defeated by his exercise of the power. ( Hetzel v. Barber, supra.)
But the difficulty here is that the proceeds were not to be paid over to the bishop in his own right. They were to be paid to him as a trustee, upon trusts which we must assume for the purpose of this discussion to be valid. He was to have no personal or private interest in the trust fund; he could only use and administer it for the trust; he could not, therefore, release to the heirs. If otherwise competent, he could not unite with the heirs in a conveyance. He could not do as he would with this trust fund; he must take it as the will gives it to him; he must wait the four years, and then take the proceeds of the real estate from the executors. Before that, he has no trust duty to perform. Notwithstanding anything he may do during the four years, the executors must sell and pay over the proceeds to him or his successor, as trustee. Therefore, during the four years, there are no persons in being who can convey an absolute fee in possession. The heirs cannot; any conveyance made by them during the four years must be subject to be defeated by the exercise of the power of sale after four years. The executors cannot, because they have no power to sell, or to unite in any conveyance until after four years. During the four years, the power of alienation is absolutely suspended. All mankind uniting could not convey an absolute title. Hence the power is illegal, and the whole scheme of the will as to the Irish trust must fail.
The judgment of the Supreme Court must, therefore, be affirmed, the costs of all parties to be paid out of the estate.
All concur; RAPALLO and MILLER, JJ., concurring in result.
Judgment affirmed.