Manion v. Peoples Bank of Johnstown

• Decision Date: 13 April 1944
• Citation: 292 N.Y. 317,55 N.E.2d 46
• Parties: MANION v. PEOPLES BANK OF JOHNSTOWN et al.
• Court: New York Court of Appeals Court of Appeals

292 N.Y. 317

55 N.E.2d 46

MANION

v.PEOPLES BANK OF JOHNSTOWN et al.

Court of Appeals of New York.

April 13, 1944.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Martin Manion against Peoples Bank of Johnstown, N. Y., as trustee under the will of Hoel S. McElwain, deceased, and another, for a declaratory judgment as to the extent of the lien of a real estate mortgage. From a judgment of the Appellate Division of the Supreme Court, 266 App.Div. 1043, 44, N.Y.S.2d 593, affirming a judgment in favor of plaintiff rendered by special Term, Imrie, J., presiding, 38 N.Y.S.2d 484, named defendant appeals.

Judgments reversed and complaint dismissed.

A. H. Pulsifer, of Johnstown, for appellant.

L. Victor Harrison, of New York City, and S. G. Rosenthal, of Johnstown, for respondent.

LOUGHRAN, Judge.

Julia Manion died August 10, 1920, a resident of the city of Johnstown, county of Fulton. She was survived by two sons, Michael and Martin. Her last will and testament was admitted to probate by the Surrogate's Court of that county on October 18, 1920. The material words thereof are these: ‘After all my lawful debts are paid and discharged, I give, devise and bequeath unto my son, Michael Manion, of Johnstown, N. Y., all that certain lot, piece or parcel of land situated in the City of Johnstown, in the County of Fulton, and State of New York, known as Lot No. 210, on the east side of Meadow Street * * * to have and to hold the same unto him, the said Michael Manion, during his natural life, with the absolute power of disposition, with the provision, that if the said Michael Manion marries and has issue, that the title to the aforesaid property shall pass to him in Fee Simple; if he marries and has no issue or descendants of such issue, and dies leaving a widow, his widow shall be entitled to an estate in the aforesaid property equivalent to what her dower rights would have been had the title of the said Michael Manion, been in fee. Should the aforesaid Michael Manion die leaving no widow, or descendants, or a widow but no descendants, the title to the said lot No. 210 shall pass in Fee Simple to my son Martin Manion if living.’

On February 8, 1935, Michael Manion and Rose Manion, his wife, gave a bond for $1,500 to the Peoples Bank of Johnstown, and as security therefor delivered to the bank a mortgage on the parcel of real property that had been devised by the above words of the testatrix. On January 11, 1942, Michael Manion died leaving no issue or descendants. Rose Manion, his widow, and his brother Martin Manion survived him.

Thereupon this action was brought by Martin Manion against the bank and Rose Manion for a judgment that would declare the extent of the lien of the mortgage which the bank had taken from Michael Manion and Rose Manion. Special Term said (38 N.Y.S.2d 484, 489): ‘It was clearly not the intention of testatrix to give Michael a beneficial power of sale. Therefore, the power in question was a general but not a beneficial power; and not being a beneficial power was a power in trust.’ Upon that construction, the power did not authorize any conveyance by Michael Manion for his own use, and in that view the mortgage to the bank was a lien upon no more than the dower interest that had accrued to Rose Manion under the foregoing testamentary text. The Appellate Division was of the same opinion.

As appellant here, the mortgagee-bank invokes section 149 of the Real Property Law, Consol.Laws, c. 50. It is thereby provided: ‘Where an absolute power of disposition, not accompanied by a trust, is given to the owner of a particular estate for life or for years, such estate is changed into a fee absolute in...