Greenland v. Waddell

• Decision Date: 08 October 1889
• Citation: 22 N.E. 367,116 N.Y. 234
• Parties: GREENLAND v. WADDELL et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 234

22 N.E. 367

GREENLAND

v.WADDELL et al.

Court of Appeals of New York, Second Division.

Oct. 8, 1889.

Appeal from city court of Brooklyn, general term.

The action was brought to recover a certified bank-check, representing the balance alleged to be due of the purchase price of real estate sold and conveyed in March, 1885, by the plaintiff to the defendant Waddell, which bank-check the latter had deposited with the defendant Major. It appears that at the time of the delivery of the deed to the defendant Waddell he paid all the purchase money except $1,000, for which amount he delivered his check to Major, pursunant to an understanding with plaintiff that it be held until the title was examined, and, if found to be ‘such as a party could be compelled to accept under a contract assuring a title in fee,’ then the check should be delivered to the plaintiff. After examination the defendant Waddell notified the plaintiff that the deed did not convey a good title to one-third of the premises, and thereupon tendered reconveyance to the plaintiff, and demanded repayment of the money he had paid. This was refused, and the action was thereafter commenced. The title to the one-third in question was in Agnes Boerum, who died in the year 1875, leaving a will, which was admitted to probate and recorded. By it she appointed her brother, Fulkert R. Boerum, and Charles H. Vanderveer executors, to whom letters testamentary were issued. So far as essential for reference here, her will was as follows: ‘After all my lawful debts are paid and discharged, I give and bequeath and devise unto my executors, * * * and the survivor of them, all and singular my estate and property, real and personal, * * * to have and to hold the same in trust to receive and collect the rents, issues, and profits, interest and income thereof, and as soon after my decease as in their judgment they shall deem expedient, and for the best interest of my estate, to sell, assign, transfer, dispose of the same either at public or private sale, * * * and to divide, pay, and distribute the proceeds thereof, together with the whole of my estate, as follows: To my sister Susan Vanderveer, wife of Charles H. Vanderveer, one equal third part thereof; to my brother, Fulkert R. Boerum, one equal third part thereof. The remaining one equal third part thereof I hereby order and direct my said executors safely and securely to invest and reinvest from time to time, in their discretion, upon such security, and in such manner, as they shall deem advisable and proper, to receive and collect the interest or income thereof, and, as the same shall be them be so collected, to pay the same to my sister Adrianna Bush, wife of Charles Bush, for and during the joint lives of her and her husband; * * * and in case my said sister Adrianna Bush shall die before her said husband, leaving lawful issue her surviving, then my executors shall, from and after such death, pay such interest or income thereof, or such portion of such interest or income as may be necessary, towards the support, maintenance, and education of the child or children of my said sister Adrianna Bush, until the youngest child shall arrive at the age of twenty-one years, and, on said youngest child arriving at such age, my said executors shall pay and transfer to the child or children that shall then be living the whole of said remaining one-third, with its accumulations, and on the death of all said children before arriving at such age, or on the death of my said sister Adrianna without leaving lawful issue her surviving, my executors shall pay the remaining one-third, with its accumulations, to my brother, Fulkert R. Boerum, and my sister Susan Vanderveer, to be divided equally between them, share and share alike; and in case my said sister Adrianna Bush shall survive her husband, Charles Bush, then on the death of her said husband the said remaining one-third, with its accumulations, shall be paid and transferred to my said sister Adrianna Bush, absolutely, in preference to any other disposition thereof.’

In 1883 the executor Vanderveer died, leaving Boerum the sole surviving executor. In February, 1884, Fulkert R. Boerum and Susan Vanderveer conveyed all their interest in the premises in question to Mrs. Bush, and shortly thereafter, upon the petition of Boerum, and with the consent of Mrs. Bush and Mrs. Vanderveer, an order was made by the supreme court accepting the resignation of Boerum as trustee of such will, and discharging him accordingly, and from all obligation to account further, etc., and by the same order Mrs. Bush was appointed trustee under the will, and directed to file security, etc. Shortly afterwards Mrs. Bush, as trustee, made to one Joslyn a deed of the premises, which he thereupon reconveyed to her, and she individually made deed of conveyance to the plaintiff. This was the evidence of the title claimed by plaintiff to the one-third in question, at the time of the commencement of the action, to have been conveyed to the defendant; but before final judgment a further deed was made by Mrs. Bush, as such trustee, to the plaintiff, which was treated as effectual for purposes of the action as if made before its commencement. The judgment directed by the trial court for the plaintiff was reversed, and new trial granted by the general term. Plaintiff appeals.

Jesse Johnson, for appellant.

A. B. Carrington, for respondents.

BRADLEY, J., ( after stating the facts as above.)

The question is, whether or not the deed of conveyance made by the plaintiff to the defendant Waddell was effectual to convey a perfect title to the one-third of the premises of which Agnes Boerum died seised, him accordingly, and from all obligation whether the deeds of Mrs. Bush, individually, and as trustee of the will of Agnes Boerum, to plaintiff conveyed such title to him. The will was productive of an equitable conversion of the real estate of the testatrix into personalty; and, for the purpose of the execution of the trusts created by the will, it must be so treated. Kane v. Gott, 24 Wend. 641;Stagg v. Jackson, 1 N. Y. 206;Everitt v. Everitt, 29 N. Y. 39. By the terms of the will the entire estate of the testatrix was devised and bequeathed to the executors, and they were given the power of sale for the purpose of distributing the proceeds as directed; that is to say, tow-thirds of the amount to be paid to two distributees, and the income of the other third to Mrs. Bush while she remained the wife of her then husband. If she survived him, she was to take the corpus of the fund, and if she did not, it was to go to her lawful issue, if she left any surviving her, who reached the age of 2§ years; otherwise it should go to her brother, Mr. Boerum, and her sister Mrs. Vanderveer. The executors took no title to the real estate as such. They were vested with a power to deal with it as personal estate, for the purposes of the execution of trusts created by the will; and one question presented is whether the power of sale came within the duty of a trustee, as distinguished from that of an executor.

The question as to where is located the line between the duties which fall upon an executor, and may be discharged by an daministrator with the will annexed, and the power which must be executed by a trustee, has been involved in some uncertainty in view of the apparent want of harmony in judicial opinion upon the subject. The theory upon which the distinction seems to have been founded is that the duties of an executor pertain to the office, and those of a trustee to the person; that the character given to a trustee has relation to a personal trust, while that of an executor is official solely. Hence it has, in the more recent case of Mott v. Ackerman, 92 N. Y. 553, been said by Judge FINCH, in speaking for the court, that, ‘where the power granted or duty involved imply a personal confidence reposed in the individual over, above, and beyond that which is ordinarily implied in the selection of an executor, * * * the power and duty are not those of executors virtute officii, and do not pass to the administrator with the will annexed.’ And when a discretionary power of sale is given to executors, or when, in the sense as applied to trusts, the duties imposed are active, the executors will be deemed trustees, and such powers cannot be executed by an administrator with the will annexed. Cooke v. Platt, 98 N. Y. 35;Ward v. Ward, 105 N. Y. 68, 11 N. E. Rep. 373. In the present case the real estate of which the testatrix died seised became, by virtue of the direction in her will to sell for the purposes there mentioned, personalty as of the time of her death, upon the principle applicable to such case that what is directed to be done by the will may be regarded as done at the time directed. The doctrine of equitable conversion rests upon that principle. 1 Pom. Eq. Jur. § 161. The power to receive the rents and profits of the land intermediate the death of the testatrix and the sale did not qualify the character as personalty of the land in the hands of the executors. That is incidental to the direction to sell, and the rents and profits so received also have the character of personalty, and are assets in the hands of the executor. Stagg v. Jackson, 1 N. Y. 206;Lent v. Howard, 89 N. Y. 169. The title to the personalty vested in the executors by operation of law; and, to accomplish the purposes of the imperative direction in the will in that respect, it was within their power, and imposed upon them as a duty, by virtue of their office, to execute the power of sale. Lockman v. Reilly, 95 N. Y. 64;Meakings v. Cromwell, 5 N. Y. 136;Bogert v. Hertell, 4 Hill, 492. As the consequence of this, the proceeds of the sale, when received by the executors, would be legal assets in their hands, for which they would be required to account, (Hood v. Hood, 85 N. Y. 561;) and if any duties were to follow in respect to one-third of the...