(135 Ν. Υ. 590)

HOLLY v. HIRSCH.

(Court of Appeals of New York. Nον. 29,

1892.)
CONSTRUCTION OF WILL-DEVISE OF POWER

COUPLED WITH AN INTEREST.

A testator, having made a contract of sale of part of his land, died before delivery of the deed. By his will, executed prior to the contract, he gave all his property to his executors upon a trust to receive the profits thereof, to sell and convey as they might deem best, and "to apply the said estate, together with the proceeds of any portion sold, according to the provisions of this will." He then gave to his two daughters, who were also his executrices, his household furniture, and to "each two seventh parts of all my said estate and property;" to them also he gave equal seventh parts as trustees for persons named. Held, that the executrices were given a power in trust coupled with an interest, and a deed by them to the purchaser under the contract passed to him the legal title. Roome v. Philips, 27 N. Y. 357, distinguished. 17 N. Y. Supp. 821, reversed.

Appeal from supreme court, general term, first department.

Action by Augustus F. Holly, as executor of the will of Nathaniel Thurston, against Haufman Hirsch, for specific performance of contract. Judgment at special term for defendant was affirmed at general term. 17 N. Y. Supp. 821. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by GRAY, J.:

equal seventh parts of his estate in fee, and the remaining three seventh parts his executrices were to hold upon trusts, one part for a daughter, one part for the chil

dren of a deceased daughter, and one part for the widow and children of a deceased son. Brett's executrices executed to Pinkney a deed of the property, and received from him the balance of the purchase moneys due under his contract with their testator. Pinkney subsequently conveyed to Dempsey, and Dempsey conveyed to plaintiff's testator. It is conceded that the only objection to the title consists in the inadequacy of the deed of Brett's executors to vest the legal title to the land in Pinkney, and it is upon that ground that the plaintiff's testatoris deemed not to have acquired a good title, which his executor mightconvey to the defendant. At the special and general terms judgment went for the defendant, upon the authority of the case of Roome v. Phillips, 27 N. Y. 357, and the plaintiff has appealed to this court.

Chas. De Kay Townsend, (S. P. Nash, of counsel,) for appellant. Saml. Riker, for respondent.

GRAY, J., (after stating the facts.) It is quite evident that the learned justices who have passed upon this case felt constrained in the exercise of their judgment by the observations of Judge DENIO in the early case in this court of Roome v. Philips, 27 N. Y.357. I think, however, that a distinction exists between that caseand the present one, which is both apparent and substantial. In Roome v. Philips the vendor died, leaving a will which simply directed his executors to sell his real estate, and the money so to be realized he bequeathed to his motherand an aunt. There was no devise of the realty to, nor any attempt to create an interest in it in, any person,

to his heirsat law, liable only to be divested by the execution at any time of the power of sale at the hands of the executor. An administrator with the will annexed executed a deed of the land contracted to be sold by testator, claiming the right under the power of sale in the will, and then brought the action tocompel the purchaser to perform and to accept the deed; and whether the administrator was clothed with the testamentary power was the question directly before the court. But Judge DENIO, after disposing of the points which the appeal book brought up, pro.

*

* *

*

*

*

* **

at public or private sale, at such time or times, and on such terms and conditions, as they shall deem most for the benefit of myestate, and to execute and deliver to the purchaseror purchasers good and sufficient conveyances for the same, and to receive the proceeds thereof, and to invest the same, and to apply the said estate and property, and the rents, issues, and profits thereof, together with the proceeds of any part or portions sold by them, according to the provisions of this, my last will and testament, hereinafter contained." The testator then proceeded to give to each of his daughters-his executrices-two

*

*

*

the vendor had died pending the contract of sale of the land, the power of sale in his will was applicable, and conferred capacity upon the donee of the power to convey the legal title to the purchaser. Judge DENIO considered that the power of sale was inapplicable, and that the legal title should be conveyed under a deed from the heir, to whom the land had descended, in which the administrator should join. Conceding to the opinion of the court in that case all the weight proper for it to have, I think we should limit its operation to the precise state of facts which called for its expression. In that case, asin that of Lewis v. Smith, 9 N. Y. 502,-another there was but the mere naked power of sale in the executors. They were given no right to, or any interest in, the testator's estate.

The plan of this will, upon a careful consideration of its provisions, becomes clear, and the difficulty is rather in the inartificial manner in which it is written out. Briefly resumed, the testator first gives all of his property to his executors upon a trust to receive the rents, issues, and profits thereof; to sell, convey, or otherwise dispose of it as they may deem best, and finally, "to apply the said estate, together with the proceeds of any according

..

part or portions sold, to the provisions of this will," etc. Then follows a clause giving to two daughters his household furniture; a clause giving to thesame two daughters, who were also his executrices, "each two seventh parts of all my said estate and property, to have," etc., "forever," and then clauses wherein he "gives, devises, and bequeaths unto his said executrices" equal seventh parts of his estate, as trustees for persons || named, etc. Now, I think it questionable whether the first provision of this will operated to create a valid trust under seсtion 55 of the article on uses and trusts. A devise in trust to receive rents, issues, and profits, where there is no direction to apply to the use of any person for any period, and a power to sell property, which is not authorized for the benefit of creditors or of legatees, or to satisfy a charge upon the same, cannot be deemed to be among theexpress trustsenumerated In the section. Downing v. Marshall, 23 N. Y. 366, 377; Cooke v. Platt, 98 N. Y. 36; Henderson v. Henderson, 118 N. Y. 1, 20 N. E. Rep. 814. But I do not consider it essential that there should have been a valid express trust erented by this first provision of testator's will. If the trust created is not for purposes enumerated in the section on express trusts, it will be valid as a power in trust, for it authorizes the performance of acts which may be lawfully performed under a power. Those acts comprebend a management of the estate, the collection of revenues, a sale of all or of portions of it, and a division into seven parts for distribution. The will provides what shall be the distribution of the parts, and makes, in certain instances, absolute gifts; or, in others, valid express trusts.

The cardinal rule in the construction of

operation limited, for the purposes of a conveyance of a legal title to lands, to such lands as remained absolutely the testator's at the time of his death,-that is to say, as to which he continued to hold every legal and equitable interest,-or does its scope comprehend a disposition of every interest which the testator might have retained and made if living? An argument is made in that respect upon the basis of Judge DENIO's remarks in Roome v. Philips, but their effect will not be extended to a case where the facts are not the same, and I think we are bound to hold that here the trust, operative as a power, subjected every possible legal interest which remained in the testator and descended to his heirs at law or devisees to its operation and execution. Doubtless, it is well settled that the effect of a contract for the sale and purchase of lands is to make of the vendor a trustee for the purchaser, and the purchaser becomes a trustee of the purchase money, or the unpaid portion of it, for the vendor. That arises from the operation of a purely equitable principle, which contemplates things agreed to be done as actually performed. But, until the delivery of the deed to the purchaser, the legal title to the land has not passed. The beneficial or equitable interest is in the vendee by virtue of the agreement of sale, but the legal title is still outstanding. The interest of the vendee is treated as real estate, and that of the vendor as personal property. 1 Sugd. Vend. (8th Ed.) 270, 273; Livingston v. Newkirk, 3 Johns. Ch. 312, 316; Champion v. Brown, 6 Johns. Ch. 402, 405. I do not perceive, however, that the operation of the equitable principle affects the question of the capacity of Brett's executors to act under the trust power by conveying the legal title to the lands to their testator's vendee. Section 59 of the article on uses and trusts provides that, when the trust is valid as a power, the lands shall descend to the persons entitled, subject to the execution of the trust. To give effect to this section we should hold it equally as operative upon the legal title, which has descended to heirs or devisees, as where they have become vested with both the legal and the equitable title. The executors of Brett had an interest in the execution of the power, for they were not only to sell, but they were to arrange for a division of testator's property into parts, applying

shall prevail applies when the construction relates to the powers conferred upon executors. The design of the testator is to be regarded, and a substantial execution of the power allowed. Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 1; Wilson v. Troup, 7 Johns. Ch. 32. I regard the intention of Brett, as deduced from his will, to authorize his executors

mentary objects, in which they were_concerned as trustees for others as well in their individual capacities. Judge KENT, in Bergen v. Bennett, 1 Caine's Cas. 1-15, speaking of a power coupled with an interest, remarked that “it is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question."

estate under this preliminary devise in trust to them of all of testator's property; but the trust, being an active one, and enforceable as a power in trust, comprehended and subjected to its execution every disposable or realizable interest in the testator's estate. The power in trust had all

tody and management for the purpose of partitioning into the parts which he gives to the members of his family. The possession of the legal title, however convenient, was not necessary to the end in view. A power was adequate for the accomplishment of all that was designed. As a

insufficient notice, and did not in any appropriate mode challenge the proceedings of the board of commissioners, and to that theory he must be held. It would be unjust to the adverse party and to the court to permit a party to assume a definite theory in the trial court, and shift from it to another in the appellate tribunal. The authorities maintain with much strictness the doctrine that the theory adopted in the trial court must be adhered to on appeal. See authorities cited Elliott, App. Proc. §§ 489, 490. The record recital we have copied, which imports absolute verity, shows that before the motion to quash was made the appellant bad appeared generally, and agreed to a postponement of the case. This general appearance precludes him from successfully assailing the service of notice. See authorities cited Elliott, App. Proc. § 677. The case of Shirley v. Hagar, 3 Blackf. 225, is not opposed to our conclusion, for in that case the party expressly reserved the right to plead in abatement, whereas in this case there was an unqualified appearance. It may be proper to add that it is doubtful whether Shirley v. Hagar can be reconciled with later decisions. We can find nothing in Norton v. State, 106 Ind. 163, 6 N. E. Rep. 126, relevant to the point here in dispute.

On the face of the returns made by the election officers, it appeared that the appellant had received 158 votes, and the appellee 157 votes, and to rebut the prima facie case thus made the court permitted 3 witnesses to testify that they cast their votes for the appellant, and also permitted them to testify that they were at the time of voting under 21 years of age. This testimony was competent. It is true that in many instances the ballots constitute the best evidence and must be produced, but the rule that the ballots constitute the best evidence has no application to such a case as the present. The ballots would not have proved for whom the witnesses voted, nor would they have proved the age of the witnesses. Pedigo v. Grimes, 113 Ind. 148, 13 N. E. Rep. 700. It is very clear that oral testimony was the only testimony that could have weight or value. It is, indeed, obvious that it is the best evidence of which the nature of the case admits. If the controversy had been as to the number of votes cast, the ballots would have been the primary evidence, but there was no controversy of that kind.

The court appointed a commissioner to take depositions, and in the order appointing the commissioner directed that the party desiring to take depositions should give his adversary three days' notice. The testimony of Charles Monroe was taken by the commissioner, and it appears that the appellant was present at the examination of the witness. Appellant's counsel claim that the testimony of the witness named was improperly taken because no notice was given, but this claim is rendered unavailable by the fact that the appellant gave notice that he would take the deposition of the witness, and when the witness appeared pursuant to the notice declined to take his deposition; whereupon it was taken, at the appointed time and place, all parties being present, by the

appellee. Where one party gives notice that he will take the deposition of a witness under an order such as that made in this instance, and is present at the designated time and place, the deposition of the witness named may be taken without further notice by the adverse party. Judgment affirmed.

(133 Ind. 451)

LIGGETT et al. v. LOZIER. (Supreme Court of Indiana. Nov. 28, 1892.) ACTION FOR POSSESSION OF LAND-PLEADINGSDESCRIPTION-PARTIES.

1. Under Rev. St. 1881, §§ 1054, 5225, re

quiring a complaint for the recovery of possession of real estate to describe the land, a copy, attached as an exhibit to the complaint, of a deed which is not the foundation of the action, cannot aid a want of description in the complaint.

2. Where a paragraph of a complaint seeks to recover possession of land on the ground that defendant had leased the land of plaintiff and the tenancy had expired, it is error to join a third person as party defendant without having alleged anything as to her except that "she has some pretended claim to said land," and, as to her, the complaint is bad on demurrer.

Appeal from circuit court, Ohio county; A. C. DOWNEY, Special Judge.

Action by Abraham Lozier against William Liggett and Martha E. Liggett for the possession of land. From a judgment for plaintiff, defendants appeal. Reversed.

John B. Coles and George B. Hall, for appellants. G. L. Downey and R. L. Davis, for appellee.

COFFEY, J. This was an action by the appellee against the appellants in the Ohio circuit court for the possession of real estate. The complaint in the cause consisted of two paragraphs. ed of two paragraphs. The court overruled the separate demurrer of the appellant William Liggett to each paragraph of the complaint, and he excepted. The court also sustained the separate demurrer of the appellant Martha E. Liggett to the first paragraph of the complaint, and overruled it as to the second paragraph, and she excepted. The correctness of these several rulings of the circuit court is called in question by the assignment of error in this court. In our opinion, the circuit court erred in overruling the demurrer of the appellant William Liggett to the first paragraph of the complaint. That paragraph contains no description of the land sought to be recovered. A complaint for the recovery of the possession of real estate, which does not contain a sufficient description of the land sought to be recov. ered, is bad on demurrer. Sections 1054, 5225, Rev. St. 1881; Gravel Road Co. v. Moss, 92 Ind. 119; Lenninger v. Wenrick, 98 Ind. 596. It is true that the appellee filed with his complaint, as an exhibit, a copy of a deed executed by the appellants to him for the land in controversy; but such deed, not being the foundation of the action, is no part of the complaint, and cannot be looked to in aid of its allegations. Huff v. City of Lafayette, 108 Ind. 14, 8 N. E. Rep. 701; Pickering v. State, 106 Ind. 228, 6 N. E. Rep. 611; Huseman v. Sims, 104 Ind. 317, 4 N. E. Rep. 42; Jack