Chamberlain v. Taylor

• Decision Date: 19 April 1887
• Citation: 105 N.Y. 185,11 N.E. 625
• Parties: CHAMBERLAIN and others, EX'rs, etc., v. TAYLOR and others.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 185

11 N.E. 625

CHAMBERLAIN and others, EX'rs, etc.,

v.TAYLOR and others.¹

Court of Appeals of New York.

April 19, 1887.

E. D. Northrup and William F. Cogswell, for appellants.

John G. Hall and D. H. Bolles, for respondents.

RUGER, C. J.

This is an action of ejectment to recover possession of 156 acres of land situate in the county of Cattaraugus, brought by the plaintiffs as executors of the will of Benjamin Chamberlain. The plaintiffs claim that Benjamin Chamberlain died seized of an estate in fee-simple in such land, in February, 1868, and that, therefore, a power of sale, as well as the title thereto, became vested in them by virtue of the provisions of his will. They also claim that, having executed the power of sale by conveying the lands to one Freeman in 1880 for a valuable consideration, and such deed being void by reason of an adverse possession by the defendants at the time of its execution, this action is brought, under the statute, for his benefit, to recover such lands.

It is an elementary rule in ejectment that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary's; and, this being so, it will be unnecessary to consider the defenses pleaded in the answer, unless we come to the conclusion that the plaintiffs derived title to the premises under the will of the testator. Upon the trial the court directed a verdict for the defendants, holding that the plaintiffs had shown no title in the premises, and the general term, on appeal, affirmed such judgment. The question presented is determined by the provisions of the will, and such additional force as may be given to the plaintiffs' claim by reason of the conveyance to Freeman, and the provisions of the statute authorizing an action for his benefit in the name of his grantors.

The provisions of the will are somewhat voluminous, but, so far as they bear upon the questions under discussion, are substantially comprised in its eighteenth and twenty-second subdivisions, which read as follows: ‘(18) I hereby further will and direct that all my estate not otherwise hereinbefore disposed of be divided into two equal parts,-one of said parts to be paid to the Centenary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, to be by said corporation invested, and kept permanently invested, and the interest and income thereof used and expended by said corporation for the benefit of Allegany College at Meadville, Pennsylvania, in such manner and for such specific purposes as said corporation shall direct; and that the other of said parts be paid by my executors to the trustees of the Chamberlain Institute, to be by said trustees permanently invested in bonds and mortgages upon productive farming lands in this state, such mortgages to be first liens, the said principal to be kept permanently invested, and the interest and income thereof to be received by said trustees, and by them used in the payment of the salaries of tutors and professors employed to teach in said institute, and in purchasing books and apparatus for the library of said institute,’ etc. ‘(22) I hereby further nominate and appoint as executors of this my last will and testament, Thomas J. Chamberlain, Amos Dow, Charles P. Adams, and Alonzo Kent. And I give, bequeath, and devise all my real and personal estate not hereinbefore specially devised and bequeathed, to my said executors, in trust for the payment of the bequests and legacies hereinbefore specified and directed to be paid; and, for the purpose of executing such trust, I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute and deliver the necessary conveyances, assignments, and releases of the same, and to sell such estate, or any part thereof, at such time or times, and upon such terms, as to them shall seem proper.’

It is, of course, well settled that a general devise of lands in trust to executors to sell and convey them vests no title in the trustees. Manice v. Manice, 43 N. Y. 304. It will be observed that the testator has not, by any express language, attempted to vest the title of his real estate in his executors; and that is not claimed by the appellants; but they seek to imply his intent to do so from a consideration of the various provisions of the will, and mainly from that authorizing them to convert his real estate into cash. An unanswerable objection to such an implication seems to us to arise from the express provisions of the statute relating to uses and trusts, which practically forbids it, unless, in addition to the creation of a valid trust, the power to take the rents and profits is also given to the executors. It is not claimed that the devise contained in such clause is brought within the description of any of the express trusts authorized by statute, unless it may be that permitted by subdivision 2, § 55, art. 2, tit. 2, c. 1, pt. 2, Rev. St., allowing the creation of a trust ‘to sell, mortgage, or lease land for the benefit of legatees, or to satisfy charges on it.’ We are, however, of the opinion, for several reasons hereafter stated, that such a trust was not thereby created. The will directs the executors to divide the testator's whole residuary estate into two parts, one of which is directed to be paid to the Centenary Fund Society, and the other to the trustees of the Chamberlain Institute, and for the purpose of making such division they are authorized and empowered to sell and convert all of his real and personal estate into cash. Undoubtedly, a strong implication arises, from the use of the word ‘paid’ in directing the satisfaction of the legacies, that it was intended by the testator that the real estate should be converted into money, and thus handed over to the legatees; but there is no imperative direction given to sell the lands; neither do the purposes of the will require such a sale; and a legal performance of the duties enjoined upon the executors could have been effected by a distribution of the property in specie to the legatees. The distribution or division of the residuary estate between the named legatees was the main object contemplated by the testator, and not its sale; and, although he might have intended a conversion of the real estate, it does not affect the transfer of the title, unless the intention to do so is manifested in the mode and language required by the statute. That expressly provides, in the case of such a trust, that no estate in the land vests in the trustees unless they are also authorized to receive the rents and profits of the same. Id. section 56.

Although the provisions of the will are inoperative to create a valid express trust under the statute, yet the power therein conferred might still be exercised as a power in trust; but in that event it is also expressly provided that the title shall descend to the heirs at law subject to the execution of the power. Sections 56, 58, 59, Rev. St.; Cooke v. Platt, 98 N. Y. 35;Konvalinka v. Schlegel, 104 N. Y. --, 9 N. E. Rep. 868; Downing v. Marshall, 23 N. Y. 366. It was held in Cooke v. Platt, 98 N. Y. 35, that a merely discretionary power of sale in the executors for purposes of distribution, even though connected with the right to receive the rents and profits, did not vest them with title to real estate. Much less would this be so where no power to take rents and profits was given by the will, or inferable from any of the purposes therein contemplated. See, also, White v. Howard, 46 N. Y. 162.

The cases of Lent v. Howard, 89 N. Y. 175, and Donovan v. Van De Mark, 78 N. Y. 244, cited by the appellants, are not in conflict with the views expressed, but rather tend to support them. In the first case it was held that the will did not vest the title in the executors, but it descended to the heirs; but, under the special provisions of the will, it was decided that the right to the rents and profits of the real estate was separable from the right to the possession, and those received by the executors intermediate the death of the testator and the execution of the power of sale were intended to be given to and belonged to the executors for the purposes of the will. In Donovan v. Van De Mark it was held that the will devised the real estate to the executor in trust, with power, either directly or inferentially, to receive the rents and profits, and apply them accordingly to his judgment, and that, therefore, a valid trust was created, and a legal title vested in the trustee. In that case the right to take the rents and profits was by the will clearly intended to be given to the executor, and in that respect differs from the case at bar.

The argument that title in the executor was to be implied from the intent expressed in sections 18 and 22 to give it to them, is effectually refuted by reason of the adjudication of this court in Chamberlain v. Chamberlain, 43 N. Y. 424, holding that said devises were invalid, to the extent of one-half of the residuary estate, as being in conflict with the provisions of the statute forbidding testamentary bequests to religious and other...