Aldrich v. Green — 16 N.Y. St. Rep. 535

Majority

p. 535

Henrietta Aldrich, App’lt, v. William D. Green et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Will—Construction of—Provision ineffectual to create a power in trust—Vested remainder

By his will the testator devised his estate to his wife for her use and benefit during her life and as long as she may remain a widow, and after her death or day of marriage he devised the same to his two children if they should be of the age of twenty-one years; if not to remain under the control of her executors until they reach that age. The widow remarried subsequent to the death of the testator. Subsequently the widow as trustee for the plaintiff, with one of the children, who was then of full age, conveyed the property in question.Held, that from the remarriage of her mother the land became absolutely vested in the plaintiff. That the provision in case of minority did not prevent the vesting of the estate in the children—that no express trust was created. That the whole provision is too vague and indefinite to be effectual for any purpose, and was equally insufficient to create a power in trust.

■%. Proceedings to sell real estate of an infant—Defects in same— When infant will be held to have ratified the proceedings.

In 1857, proceedings were had to sell the interest of the plaintiff in the premises in question, and the property was sold under the order of the court therein. The plaintiff became of age in 1868. In 1884 she brings this action, claiming her title to the premises by reason of defects in the proceedings. Held, that she should be held to have ratified and confirmed the sale.

Appeal by plaintiff from a judgment entered upon the ¡report of a referee, in favor of the defendant.

Under the last will and testament of John W. Fonda, the plaintiff took a vested remainder in the land in question, subject only to the use and enjoyment, by her mother, Martha Fonda, during her natural life, or until she' should marry. She married James E, Holmes, in September, 1856. From that period the land became absolutely vested in the plaintiff in possession. Ackerman v. Gorton, 67 N. Y., 63 ; Lawrence v. Cooke, 104 N. Y., 632 ; 6 N. Y. State Rep., 772; M. L. In. Co. v. Shipman, 12 N. Y. State Rep., 802;: Moore v. Littel, 41 N. Y., 66 ; Bradley v. Kuhn, 97 N. Y., 27 , 35; Tracy v. Ames, 4 Lansing, 500; Manice v. Manice, 43 N. Y., 180 . The following provision of the will “then I give and devise all of the real estate, to be equally divided among my two children, if they should be of the age of twenty-one years; if not, to remain under the control of my hereinafter named executor, till they shall have attained the age of twenty-one years each, then said real estate to be equally divided between my two children, their heirs and. assigns,” did not prevent the vesting of the estate in the' children. No expressed trust was created thereby. Revised Statutes, vol. 1, p. 678; 55 Edmund Ed. There is no direction in regard to the receipt, or disposition of the rents and profits. Chamberlain v. Taylor, 105 N. Y. 191 ; 7 N. Y. State Rep., 517. Nor does the will direct in what manner, or for what purpose, the said control should be exercised. And it is somewhat doubtful whether the control was to be exercised over the children or the land. The whole provision is too vague: and indefinite to be effectual for any purpose. It is equally insufficient to create a power in trust, as no specific duty is conferred upon the executor, nor is he vested with any specific authority over the real estate. Gardner, the executor, was removed as executor by the surrogate of Rensselaer county, in 1854. He never exercised any control over the real estate, and the conduct of all parties interested shows that no such authority was recognized. The sale was not. contrary to any provision of the will. Lawrence v. Cooke, 104 N. Y., 632 ; 6 N. Y. State Rep., 772; Manice v. Manice, 43 N. Y., 303 ; Weeks v. Cornwell, 104 N. Y., 325 ; 5 N. Y. State Rep., 632. The interest of the plaintiff in the real estate was sold under the provision of the Revised Statutes, entitled “Of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates.” See vol. 2, 202, Edmund’s ed. The county court of Rensselaer county, in which the premises were situated, had jurisdiction to entertain the proceedings. Dodge v. Stevens, 105 N. Y., 585 ; 8 N. Y. State Rep., 671; Jenkins v, Fahey, 73 N. Y., 355 . The proceedings were conducted in such manner, as to preserve the jurisdiction in the court, and. with a degree of regularity and precision which constituted, a substantial compliance with all the requirements of the statute. The facts justify the assumption that the plaintiff received and has enjoyed the consideration paid by the pur

p. 537

chasers for the land. The plaintiff became twenty-one years of age in the year 1868, was under no disability, and could have brought her action if she had any valid claim, yet she delayed any proceeding to recover the premises until 1884. She has never returned,or offered to return, the money received by her as the consideration of such sale. Under such circumstances she should be held to have ratified and confirmed such sale. Crummey v. Mills, 40 Hun, 370 ; Medbury v. Watrous, 7 Hill, 110 ; Henry v. Boot, 33 N. Y., 526 ; Lynde v. Budd, 2 Patge Chy., 191; Parsons on Contracts, vol. 1, p. 281. The case of Green v. Green, ( 69 N. Y., 553 ), when applied to the facts of this case, furnish no support to the plaintiff’s case, in this respect. That case was peculiar in its facts, being between father and son, and the action was brought within three years after the party reached majority. Upon the various questions involved in this case, we refer to the opinion in Henrietta Aldrich, the plaintiff, _ herein, against Margaretta Funk, ante 503, which was an action commenced to recover another parcel of land derived by plaintiff from the devise under the will in question, which was tried before the same referee, and submitted to this court at the same term. The proceedings, which resulted in the sale of the land in question in this action, were conducted with greater care, then in the other case to which we have referred, yet in neither do we discover any defects which can be regarded as sufficiently grave to defeat the title acquired under such sales. The defendants have established equities which entitle them to every reasonable intendment in support of their title. The judgment should be affirmed with costs.

Learned, P. J., and Landon, J., concur.