The counsel for the appellants has very candidly, and I think justly, waived any claim to maintain the devise to Martha Titus, the wife of the testator, as a valid trust under the statute relating to "uses and trusts" (ch. 1, part 2, title 2, art. 2), or as a power in trust under section 56 of that article. It is insisted, however, that it is valid as a power in trust under section 58 of article 2. (1 R.S., p. 729, marg.)
That section (58) directs as follows, viz.: "Where an express trust shall be created for any purpose not enumerated in any of the preceding sections, no estate shall vest in the trustees; but the trust, if directing or authorizing the *Page 89 performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title."
The trust under the will is to "use and dispose of the estate, not otherwise devised, for the benefit of the testator's wife, the person named as the trustee, and his three daughters, Mercy, Larissa and Mary Ann." It is an authority to sell and apply the proceeds, and these are acts which the owner might lawfully have performed. These are also acts authorized to be performed under a power as defined by section 74, article 3, "of powers." (2 R.S., p. 732.)
The authority cannot be derived under section 56 of the article in relation to "uses and trusts," because that relates only to cases where the trust authorizes the trustees to sell or mortgage, and not to receive the rents, and the will here purports to vest the estate in the trustee, who is, of course, authorized, if the trust were valid, to collect the rents.
Looking, then, into the article in relation to "powers," to which a power in trust is, by section 58 of the preceding article, made subject, we find that the trust cannot be executed as a general power in trust, under section 94 of the 3d article, because the grantee is one of the persons entitled to the benefits to result from the alienation of the land. Nor can it be executed as a special power in trust under the first subdivision of section 95, as there is no limitation as to the persons to whom the estate is to be conveyed.
The second subdivision of that section defines a special power to be in trust, also "when any person or class of persons other than the grantee is designated as entitled to any benefit from the disposition or charge authorized by the power." The will in this case designates three persons, daughters of the testator, besides the trustee, who are to be benefited by the disposition of the land.
It appears, therefore, that the trust may be lawfully executed under this provision in relation to powers.
But no estate vested in Mrs. Titus as trustee. It is directly so declared by section 58, page 729. The trustee *Page 90 was, however, one of the persons entitled under the will to the benefit of a portion of the estate.
It is found as a fact by the judge before whom the action was tried, that the claims against the estate of the testator, which the defendants insisted on as the consideration for the conveyance from the trustee to the defendant, Martha Bowen, were such as could not be enforced against his estate. It is tantamount to a finding that there was no consideration to the extent of these pretended claims. There was, therefore, no present consideration paid. There was also an agreement to pay the said trustee $28 per annum during her life, and this was so paid for a period of six years. It is also found as a fact that Mrs. Bowen knew the trust upon which Mrs. Titus held the title, although Mrs. Titus appeared to hold in fee simple by deed from the former owner to herself, the testator never having taken a deed, but holding a contract for the land, by which Mrs. Titus obtained the said conveyance.
There was, therefore, no valid execution of the trust as a power. Mrs. Bowen knew it; she knew that she was purchasing from a mere trustee, or from one holding a power in trust, to whom nothing was paid, and who was violating the trust which had been reposed in her. Had not the trustee been one of the four persons for whose benefit the estate was devised, the conveyance to Mrs. Bowen would have been wholly void as against the beneficiaries under the will. Upon the death of the testator, the estate vested in the four persons named as those for whose benefit it was "to be used and disposed of." This would have been otherwise had there been a suspension of the power of alienation for the term of these four lives. But the power of alienation was not suspended at all. Mrs. Titus could convey at her discretion. Her conveyance to Mrs. Bowen is good only to the extent of her own interest.
The order appealed from should be affirmed, with costs; and the defendants having so stipulated, the judgment should be made absolute.
Order affirmed. *Page 91