The only point submitted to the court for its decision in this case presents the question whether the executor can convey the title to certain real estate he has contracted to sell to the plaintiff. It is conceded to have been lawfully vested in a trustee, under a marriage settlement made for the benefit of the testatrix in 1841. By the terms of the settlement the property was to be held in trust for her during her marriage; and it was so held until the period of her own decease. The trustee himself has since died, and it is contended, on the part of the plaintiff, that the trust has from that time vested in this court; but that is evidently an erroneous view of the effect of the decease of the beneficiary, for it has been provided by statute, which was in force when the trust was created, that when the purposes of an express trust shall have ceased the estate of the trustee shall also cease. (3 R. S. [5th ed.], 22, § 86.) This provision had the effect of terminating the title of the trustee in the property when the beneficiary died, and there was nothing left to devolve upon the court for execution. It is only when the trust itself remains partially unexecuted, that it becomes vested in this court upon the decease of the trustee (id., § 81), and that, as already stated, is not this case. The parties to the marriage settlement included the trustee, and the persons who contemplated marriage ; and in the instrument making the settlement and creating the trust they, in terms, so far qualified the estate of the trustee in the property as to secure the power to the intended wife, at any time during her life, to “ limit, devise, order or appoint, either by her last will and testament in writing, or by any other writing signed with her hand, in the presence of two or more credible witnesses,” the property held in trust for her benefit; and it was further declared that the person or persons to whom she should “ give or dispose any part of her separate estate, by her last will or any other writing that shall be signed by her in the presence of two credible witnesses, as aforesaid, shall, and lawfully may, peaceably and quietly have, hold, occupy, possess and enjoy the same according to the true meaning of such grant, gift, devise or appointment, without any let, denial, hindrance or interruption of, or by, the said John "W.” (the husband), “ his executors, administrators or assigns, or any of them.”
The trust was subordinated to the existence of this power in the
By chapter 375 of the Laws of 1849, married women were empowered to devise their real and personal estate; and afterwards they were expressly authorized to make wills. (Laws of 1867, vol. 2, page 1927, chap. 782, § 4.) The testatrix executed her last codicil in 1874, and died in 1875. Her will and codicils went into effect at that time, and they consequently had the sanction and authority of both these statutory provisions. That was sufficient under the power reserved to her by the marriage articles, to render her devise of the real estate, affected by the trust, effectual, as a conveyance of the legal and equitable title, to her executor. Her power in that respect was in no way restrained by the last section of the act of 1849, declaring that all contracts made between persons contemplating marriage, shall remain in full force after such marriage shall take place. (Laws of 1849, chap. 375, § 3.) It was by reason of the fact that the marriage articles did remain in force, and consequently preserved unimpaired the power created by them, that the testatrix could devise the title to the trust estate. After her preceding disability as a married woman had been removed by the legislature, neither the case of Anderson v. Mather (44 N. Y., 249) nor that of Mc Whorter v. Agnew (6 Paige, 111), could in any manner qualify the authority possessed by her under the stat
The defendant should, therefore, have judgment on the case submitted for the determination of this court.
Judgment for defendant on case submitted.