Prior to March 14, 1867, Henry B. Burton owned certain land in the city of Syracuse, subject to a mortgage, to foreclose which this action was brought, and on that day, through the medium of a third person, he conveyed it to his wife Cornelia H. Burton. On the 8th day of July, 1876, she, without any consideration, conveyed the land to Emily Howland, her mother, and on the fifteenth day of the same month Mrs. Howland, without any consideration, conveyed the land by a deed which we are now called upon to construe.
The deed purports to be an instrument between Emily *Page 418 Howland of the first part and "Cornelia H. Burton, wife of Henry B. Burton, of Syracuse, N.Y., in trust for Annie G. Burton, Grace Burton and Burr Burton, with power to sell and convey, or mortgage, without the appointment of a guardian, of the second part;" and it grants the land, with all the rents, issues and profits thereof, to the party of the second part and "to their heirs and assigns forever," to have and to hold the same to the party of the second part, "their heirs and assigns," to the sole and only proper benefit and behoof of the party of the second part, "their heirs and assigns forever." There is no other reference to a trust or power except that contained in the first clause of the deed above set out. After this conveyance Mrs. Burton executed two mortgages upon the premises to secure indebtedness of her husband.
In the construction of this deed we are enjoined by statute "to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law." (1 R.S. 748, § 2.) Both parties agree that no valid trust was created as no trust purpose was specified which is mentioned in the statute authorizing the creation of express trusts. (1 R.S. 729, § 55.) A mere formal, passive trust was attempted to be created which the statute executes by vesting the title in the beneficiaries. (§§ 47, 49.) They also agree that a valid general power was created under the statute defining and regulating powers (1 R.S. 732, §§ 74, 77), and we will proceed upon that assumption. They differ, however, as to the nature of the power. The appellants claim that no one but the grantee of the power was interested in the execution thereof, and that, therefore, it was a beneficial power under section 79.
While the deed is quite informal and imperfect in the expression of the intent of the parties, yet we think sufficient appears to show that it was not their intention that Mrs. Burton should execute the power for her own benefit. The conveyance was made in trust for the three persons named, *Page 419 who were the children of Mrs. Burton. They were the real beneficiaries of the grant, and the power to sell and convey, or mortgage, was probably given because they were infants, and the object was to authorize a conveyance of the land when desired, without the appointment of a guardian for the infants, and thus to avoid the expense and delay which would ensue if the land were required to be sold or mortgaged only by a compliance with the statutes regulating the sale and mortgaging of the lands of infants. The case of Jennings v. Conboy (73 N.Y. 230) is not an authority for the contention of the appellants. In that case there was no indication whatever in the will that the power to sell was to be executed for the benefit of any other person than the grantee of the power, and that distinguishes that case from this. Here we find a satisfactory indication that the power was to be executed wholly for the benefit of the infants, and it is, therefore, as claimed on their behalf, a general trust power under section 94 of the statutes, and the land passed to and vested in the infants, subject to the execution of the power. (§§ 47, 49, 58 and 59.)
Therefore, the mortgages given by Mrs. Burton to the appellants, to secure the debts of her husband, were not a valid execution of the power, and were void.
The judgment of the General Term should be affirmed, with costs.
All concur except ANDREWS, J., taking no part.
Judgment affirmed.