Opinion
Argued February 11, 1904
Decided March 15, 1904
Edward W.S. Johnston and Lewis S. Goebel for appellant. Benjamin N. Cardozo and Moses Esberg for respondent.
The courts below have held, under the provisions of the testator's will, that the power of sale given to Mrs. Walli Goetz was not general and beneficial; that it was accompanied by a trust and that her children and those of the testator took vested remainders in the life estate devised to her. It was held that the power of sale given to her by the will had not been exercised, through the instrument indorsed upon the deed of Brown's executors, and that it effected nothing more than a conveyance of her dower in the two-thirds devised to testator's children and of her life estate in the one-third devised to her.
We agree with the decision and we do not see how different conclusions could be reached. It is clear that the children of Walli Goetz, at the moment of the testator's death, became vested with estates in remainder. Although he used the words "to be divided," in disposing of Mrs. Goetz' life estate after her death, no especial significance is to be given to them. Nothing in the will shows any intention on his part to prevent an immediate vesting. To the contrary, it is manifest that they were intended as words of gift, merely; just as, when giving to his own children upon his death, in the second clause, he uses the same words.
That being the situation upon the testator's death, his will conferred the power on Mrs. Goetz, then his widow, to sell the property composing the one-third of the residuary estate devised to her; but, had she validly executed the power, the proceeds would, simply, have taken the place of the property sold and would have been held by her as life tenant. ( Matter of Blauvelt, 131 N.Y. 249.) Her life estate had not been converted into a fee by the absolute power to sell; inasmuch as her children and those of her husband, as remaindermen, were interested in the exercise of the power. The will gave her no greater interest in the proceeds of a sale, than in the land sold. She took the general power, not for her own benefit, but accompanied by a trust, and that brought it within the limitation in section 81 of the article on Powers of the Revised Statutes. Having then a general power to sell the property, her release, indorsed upon the executors' deed of the premises, was not in execution of it, within section 155 of the Real Property Law; because she was not conveying some interest, which she had only the right to convey by virtue of the power. Apparently, from the language of the release and of the notarial acknowledgment, she was conveying her right of dower in the premises sold and if any other right, or interest, belonging to her, was the subject of her release, it was her life estate. Within the rule of the decision in Mutual Life Insurance Company v. Shipman, ( 119 N.Y. 324), as the testator's widow had independent interests in the property, her conveyance must be construed as relating to them and the statutory provision, validating a conveyance by the grantee of a power, as in execution thereof, although the power be not referred to therein, has no application. The learned Appellate Division, in reversing a judgment for the defendant rendered upon a previous trial, in an opinion by Justice HATCH, has so well and carefully discussed the question as to render needless further discussion by us. ( 58 App. Div. 112.)
The appellant raises the additional question of the correctness of rulings rejecting evidence, offered to prove that the property was owned and held by the copartnership of Felix Brown and Adolphus Brown. The effect of such proof, it is argued, would be to make the interest of Adolphus Brown personalty; which the conveyances in question by his executors and by his widow were competent to transfer. Whatever might be made of such proof to fortify the defendant's title, it is quite sufficient, in such a case, to say that a party will not be required to take a title, which depends for its completeness upon parol evidence. As to that, I need only cite Moore v. Williams, ( 115 N.Y. 586), as a case in point. An exception might be found, perhaps, where the title was vested upon such a notorious and generally known fact, as that of adverse possession, which, usually, is capable of establishment beyond any reasonable doubt. But, to use the language in Moore v. Williams, such instances have "little analogy to one like this, where the lapse of time operates in a different way and may speedily wipe out the only evidence competent to cure or remove the defect in the title tendered." Whether the premises were partnership property and whether the conveyances of the executors and widow were in settlement of partnership matters, were questions of fact and depended for their solution upon extrinsic evidence, to be gathered from partnership records, or books, and from a restricted class of witnesses. A purchaser should not be compelled to take a title which he might have to defend by resort to such perishable evidence.
I think that the judgment appealed from was correct and that it should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, HAIGHT, MARTIN, VANN and CULLEN, JJ., concur.
Judgment affirmed.