I will as briefly as possible state the reasons for my dissent from the conclusion of the majority of the court in this case.
After examination I arrived at the following conclusions, First. That the question whether the remainder limited to the heirs of Matthew and Martha Codd was vested or contingent, is not important. The trustees were, on the death of Matthew and Martha Codd, to hold the land to the use of their heirs. Even if contingent this was a legal estate in remainder, to take effect as such on the termination of the trust estate granted to the trustees. It was in legal effect a remainder in fee, limited to the issue or descendants of the grantors, who might be living at the death of the survivor of them, as no other persons could answer the description of heirs of both of them, and that such was the intention of the grantors is manifest from the explanatory words used in the deed, "that is to their children, grandchildren or such other persons as by the laws of the State of New York would be heir or heirs of the said Matthew and Martha Codd at the time of the death of the survivor of them, if this deed had not been made." The lands granted belonged to both grantors. *Page 323
The estate of these heirs was not a mere equitable interest in remainder, which could be made available only through the trustees, or was dependent upon their estate and would fall with it, but, when the limitation took effect by the happening of the prescribed event, the plaintiff became seized of a legal estate in fee, as purchaser from her parents. The grant to the trustees and their heirs being to hold to the use of the remaindermen after the death of Matthew and Martha Codd, no estate vested in the trustees, but the legal estate vested directly in the cestuique use whenever the event occurred. This was the law under the statute of uses before the Revised Statutes, and is clearly so under them. The provisions in this respect are expressly made applicable to estates previously created. (1 R.S., 727, §§ 47, 48.) The remainder is the same in effect, as if limited directly to the issue of the grantors, living at the time of the death of the survivor of them.
In substance therefore the trust deed created, first, a trust or power (the deed says "full power and authority") to sell enough of the land to pay the debts of the grantors existing at the date of the deed. This trust or power was to be executed immediately, and during the lives of the grantors, for second, the residue remaining after these sales, is to be held in trust to receive the rents and pay them to the grantors and the survivor of them, for the support of themselves and their children, during the lives of the grantors and the life of the survivor. There is nothing in the deed continuing any trust beyond the lives of the grantors. On the contrary it is expressly provided that the lands not sold as aforesaid shall be held for the use of such persons as would be the heirs of the grantors at the time of the decease of the survivor of them, if the deed had not been made. It was the evident intent, though the language is peculiar, that the estate of the trustees should then cease, and the title vest in these heirs as it would have done if the deed had not been made. No power of sale was to exist after the death of the grantors. In this respect the case differs materially fromCollier v. Walters, *Page 324 (L.R., 17 Eq., 252). There the trust was not, as in this case, to sell part of the land to pay debts, and hold the residue to the use of the remainderman after the death of the beneficiary for life, but to hold the whole property in trust until certain debts and legacies should be fully paid, and to pay them, not by sales of part, but with the net income of the whole, and the trust was, by its terms, to continue even after the death of the beneficiary, if the debts had not then been paid out of the income. The remainder limited on the death of the first named beneficiary and the payment of debts and legacies, was not therefore a legal remainder to take effect on the death of the first named beneficiary.
But in the present case there was no trust even to sell all the lands, but only enough to satisfy the then existing debts. The trust to sell did not apply to the residue, the income of which was to be paid to the grantors. Practically some time would be occupied in ascertaining the debts and selling enough land to pay them, but when this was done it would relate to the time when it should have been done. By the terms of the deed it was to be done immediately, and the rest of the land freed, and on the principle upon which Manice v. Manice (43 N.Y., 303) was decided, the separation between the land to be sold and the residue to be held in trust, whenever practically carried out, took place in contemplation of law immediately after the delivery of the deed. The residue only passed to the trustees for the benefit of the grantors.
Second. The estate of the trustees was commensurate with the purposes of the trust, no more, no less, and consequently ceased when those purposes ceased. This was the rule at common law as well as under the Revised Statutes. The insertion of words of inheritance in the deed, or their omission, could not control this principle.
Third. Whatever view may be taken of the trust to sell for the payment of debts, and even if it should be held to apply to all the land, which I am clearly of opinion it did not, it was not by its terms to continue beyond the two lives, *Page 325 and there can be no doubt that it had actually terminated long before the death of Mrs. Codd, the survivor of the grantors. More than sixty years had then elapsed since the creation of the trust, and the authority was to sell for the payment of debts then existing. The power was to be executed immediately, and its execution could have been compelled. The legal presumption of payment is applicable to all those debts.
If any lands were required to be sold for their payment, the presumption is that the sale was made at the time it should have been. There is no pretence that any of the lands now claimed by the plaintiff were so sold or that the defendants claim title under any such sale. On the contrary they claim wholly by reason of an alleged adverse possession, founded upon a void tax sale, and a mortgage executed by one of the cestuis que trustent.
The trust terminated therefore by its own limitation on the death of Martha Codd in 1871, and the plaintiff thereupon became seized of a legal estate in fee.
Fourth. The statute of limitations did not begin to run against her until that time. So long as there was an outstanding precedent estate in the trustees, and until the right of the plaintiff to enter accrued, the statute did not run against her. The adverse possession began in 1839, and long before the death of Mrs. Codd the statute had run against the trustees. It may be conceded for the purposes of this case that the equitable interests of the beneficiaries under the trust had been barred. But the legal estate in remainder, limited to take effect after the execution of the trust, was not dependent upon the estate of the trustees, nor derived through them, but came to the plaintiff directly from her parents, and no act or laches of the trustees could bar her right to enter as soon as her right of entry accrued. The statute then, and then only, began to run against her.
Fifth. The previous destruction of the estate of the trustees by disseizin or adverse possession, did not defeat the remainder, even if it was contingent. The provisions of the *Page 326 Revised Statutes apply to the case. They declare that no expectant estate can be barred by any act of the owner of the precedent estate, or any destruction of such precedent estate by disseizin, etc., or otherwise, and that no valid remainder shall be defeated by the determination of the precedent estate before the happening of the contingency upon which the remainder is limited to take effect, but should the contingency afterwards happen the remainder shall take effect in the same manner as if the precedent estate had continued to the same period. (1 R.S., 725, §§ 32, 34.)
The disseizin or adverse possession in this case did not take place until after the Revised Statutes went into operation. The adverse possession did not begin until 1839, and the effect of the destruction of the precedent estate, upon the remainder limited thereon, is determined by the statute then in force. There is nothing in the Revised Statutes which restricts the operation of these provisions to remainders or expectant estates subsequently created. The only saving clause is that none of the provisions of chapter one shall impair vested estates or interests, except in the case of passive trusts, nor affect the construction of any instrument which had previously taken effect. (1 R.S., 750, § 11.) The sections 32 and 34 above cited do neither. They simply determine the effect which the destruction of a particular estate, occurring after their passage, shall have upon a contingent remainder limited thereon. No rights had become vested in consequence of such destruction, for it had not happened. No retroactive effect is sought to be given to the statute. Neither do these sections affect the construction of the deed.
Sixth. Even if it be held as claimed, that in addition to the remainder, the plaintiff had an equitable interest in the premises under the trust for the support of the grantors and their children, which she could have enforced during the life of her parents, the only effect of her omission to assert that right before the estate of the trustees was barred by adverse possession, was to bar her equitable right as cestui que trust to a support out of the income. By thus waiving or losing such *Page 327 equitable right during the trust, she did not bar her right to claim the legal estate in remainder when the event occurred which entitled her to enter as owner.
I consider these propositions fully sustained by the authorities cited in the briefs of counsel and others which I have examined, but I forbear comment upon them, or an extended discussion, as I merely wish to state the grounds of my dissent.
I am of opinion that the decision at General Term was right and should be affirmed.
All concur with DANFORTH, J., for reversal, except RAPALLO, J., dissenting, and EARL, J., taking no part.
Order reversed and judgment affirmed.