Cusack v. Tweedy

The vendee objected to the title tendered by the vendor upon two grounds: one, that the complete title never vested in the latter’s • testator, and the other that, if it did, the executor’s power of sale did not cover and cut off a vested interest as to which the trust had terminated.

All the difficulty underlying the first objection rests upon an imperfect and incomplete deed which the executor caused to be recorded after a lapse of fifty years. Disregarding that, the title of the testator is complete and. perfect. It is conceded that, prior to April 15,1813, the premises were owned by George Thompson, who died seized and intestate, leaving six heirs at law, viz.: George Thompson, John G. Thompson, Elizabeth Pinkney, Dolly Lord, Magdalene Crook and Maria Burnham, each entitled to an undivided one-sixth of the property. On the 20th of September, 1815, the first four conveyed their interests to Mrs. Crook, the husbands and wives joining, and that deed was recorded early in the following October, and vested with her own share five-sixths of the estate in Mrs. Crook. Objection was made to this deed on the ground of an alleged prior conveyance, but the objection was overruled and the deed admitted in evidence. Mrs. Crook, thus owning five-sixths of the estate, conveyed an undivided half to Joseph S’. Lord in trust for Maria Burnham, who owned the remaining one-sixth. The deed was dated May 31, 1817, and recorded in 1865, or after an interval of almost fifty years. On February 5, 1825, Lord, the trustee, and Mrs. Burnham, the ben

In January, 1825, Mrs. Crook acquired the outstanding one-sixth owned by Maria Burnham, and that deed was also recorded in 1865. On the same day of the acknowledgment of that deed by Mrs. Burnham, Mrs. Crook made her last will in which she recites her entire ownership of all the shares and of the whole property and devises it to Joseph H, Lord in trust to pay the rents and profits to Mrs. Burnham for her life, and then to her son John Francis Burnham for his life, with remainder in fee to Joseph FT. Lord. By the death of the two life tenants the unincumbered fee passed by his will. Lord died in 1857 and his executor, the defendant Tweedy, finding in Lord’s safe four unrecorded deeds caused them to be recorded in 1865. Two of them were the deed of trust and conveyance back, any record of which was needless; one was the deed of Mrs. Burnham which we know was delivered and became effectual because it is recited in Mrs. Crook’s will under which the Burnhams took and accepted their life estates ; and one was the incomplete deed which the courts below have held was never delivered and never became operative. That deed is dated September‘9, 1815, or just eleven' days before the conveyance of the same grantors to Mrs. Crook, and was to her and Maria Burnham. The wives of the two Thompsons were named as grantors and seals were left for their signatures, but they had not signed. There was a witness clause for their signatures and that remained unsigned. That deed never passed into the hands of the Burnhams. Maria knew of the actual conveyance made to Mrs. Crook alone, for she appears to have identified one of the grantors. It is quite evident from what followed that the original purpose of conveying to Mrs. Crook and Mrs. Burnham was abandoned through distrust of the latter’s husband and instead the conveyance was made to Mrs. Crook alone and she conveyed to Lord in trust for Mrs. Burnham. The imperfect and partly executed deed was found in the possession of Lord and any possibility of its delivery is excluded by the after action and conduct of the parties. Ho presumption of a delivery can arise from an utterly unauthorized record shown to have originated in a mistake and made half a century after its original was drawn. The deed made eleven days later, completely and perfectly executed by all parties and that to the knowledge of Mrs. Burnham herself, and the subsequent action of all such parties, removes every reasonable doubt. On the face of the papers themselves the earlier deed must be held, as the court below, have agreed, to have been undelivered and entirely inoperative. Its invalidity sufficiently appears on the face of the records themselves.

But assuming that a perfect title was established in Joseph H. Lord, a further question arises over the construction of his will. He gave the residue of his property to his executors in trust for the benefit of his four children; creating four separate and several trusts, each covering an undivided one-fourth of the residue. The trusts were to pay the income to each child for his or her life, and at his or her death to convey such share with any unapplied

It would be difficult to frame a power of sale more broad and unrestricted than the one before us. It covers not merely the residue embraced in the trust but the whole estate and is unlimited as to time. It necessarily falls under the authorities first cited, unless we can find in its terms some definite indication that all the purposes for which the power was given necessarily ended when any one of the four trusts terminated, and that the remainders were given not subject to the power but entirely freed from it. There seems to have been two purposes which the power was intended to accomplish, one to enable changes to be made in the capital of the estate with a view to the safety of investments and an increase of the earning power, and the other to facilitate an ultimate division without the expense and delay of a partition. Neither purpose was bounded by the limits of a single one of the trusts; each might remain unaccomplished though a single one of the trusts had fallen in.

Some intended limitation of the power, notwithstanding the broad terms in which it is expressed, is sought to be ar of the words “ and in the meantime said executors

Two cases in the English courts have rewarded the industry of the respondent’s counsel. Trower v. Knightley, 6 Madd., 134; Taite v. Swinstead, 26 Beav., 525. The last is especially satisfactory. Its fundamental idea is expressed in the phrase, ‘‘The power is unlimited and overrides the whole estate.” We are thus of opinion that the power subsisted beyond the death of Mrs. Tweedy, and that the executor’s deed was good. Having no doubt of the unsoundness of the objections to the title, we are prepared to concur with the majority of the general term.

Its judgment should be affirmed, with costs.

All concur.