Dodge v. Stevens

Learned, P. J.

(dissenting):

The will gave the land to the widow in fee, and further declared that if she should marry, then the land should go to the daughter, Catharine E., in fee.

At common law this devise to the daughter would have been an .executory devise. It is now a future estate (1 R. S., m. p. 723, §10); that is, it is limited to commence in possession at a future day, on the determination of a precedent estate created at the same .time. A fee may now be limited on a fee (see p. 724, § 24), so that we have no longer to look to the law of executory devises, but can base the discussion on the statute.

A future estate belongs to one of the classes of expectant estates (m. p. 723, § 9). Tt is, therefore, descendible, devisable and alienable the same as estates in possession (m. p. 723, § 35). This •future estate is contingent (m. p. 723, § 13). But it is declared to be an estate by these sections, and is not a mere possibility like the probability of an heir’s inheriting from his ancestor. Even before the Revised Statutes, a contingent estate like this was assignable. (Miller v. Emans, 19 N. Y., 384.) And certainly so since the Revised Statutes. (Moore v. Littel, 41 N. Y., 66 ; Van Ness v. Day, 7 Alb. L. J., 172.) These were cases of conveyances, not *453to tbe party in possession. They were, therefore, upheld not on the ground of merger, bnt on the ground of. the general alienability of such an estate.

Then the question arises, can such an estate belonging to an infant be sold under the statute? The statute (2 R. S., m. p. 194, § 100 [170]) says: “Any infant seized of any real estate or entitled to any term for years,” etc. Section 105 (175, m. p. 195) says: “Any part of the real estate of such infant.” The question is, what does the word “ seized ” here mean ? The proper meaning of seizin is possession, as of freehold. (Digby Real Prop., 40 n.) And livery of seizin, that is delivery of possession, went with a feoffment. This is abolished. (1 R. S., m. p. 738, § 156 [136].) Nor could there be then a livery of seizin in a case of a devise. (1 Wash. Real Prop., m. p. 34, § 73.) Whatever may have been the early doctrine, it has long been the language of the law that a reversioner or remain-derman in fee was seized of his estate. The sale of this infant’s real estate was not contrary to the provisions of the will. (2 R. S., m. p. 195, § 106 [176].) Because we have just seen that the daughter, Catharine E., when of age, could convey this expectant estate. Therefore, she was not forbidden to convey by the provisions of the will.

If the provisions of the will did not forbid her to convey, when she should be of age, clearly the court did not act against those provisions by authorizing a conveyance when she was a minor. Nothing is said in the will about her minority. The case of Rogers v. Dill (6 Hill, 415) has nothing applicable to this case.

In Baker v. Lorillard (4 N. Y., 257) there was a devise^ made before the Revised Statutes, of an estate for life to D. P. C., remainder in fee to his children; executory limitation to Thomas, if D. P. C. left no children at his death, and there was a power of appointment by will in D. P. C. In 1825 D. P. C. had five children, minors, and the usual order of sale was made, which by its terms was to cut off after-born children. Subsequently three more were born. The court held that after-born children were not affected by the sale. Some of the judges would express no opinion whether the sale bound all or only those living. The majority seem to have thought that it bound those who were living (see' p. 270), notwithstanding the executory limitation. Durando v. *454Durando (23 N. Y., 331) only holds that a widow is not dowable when the husband had only a vested remainder in fee.

In Jenkins v. Fahey (73 N. Y., 355, and see Taggarts. Murray, 53 N. Y., 233) a will gave a life estate to Cornelia, with remainder to her issue living at her death, with power to her in default of issue to appoint the fee by will. It was held that, prior to the death of Cornelia, the court might order the sale of the interests of the minor children then living. Yet their interest were subject to two contingencies: First, that there might be after-born children; second, that those whose interests were sold might not survive Cornelia. To the same effect is Haight v. Haight (14 Hun, 176). If any argument may be drawn from the present law there can be no doubt that the interests of the infant under this will could be sold (Code, § 2348), and that section does not purport to make any change.

It has sometimes been urged that a power to sell expectant estates would lead to a sacrifice of the interests of minors. But the court has a discretion. It need not order a sale if it sees that a sale is unwise. In this very case the purchaser would probably not have taken a title from the widow alone, or the title of the children alone. But by obtaining a deed from the widow and one from the special guardian, he received (as he thought) a title free from all contingencies, and, therefore, paid (as we may suppose) a fair price. Thus the property was made available both for the widow and the minor.- If the view taken by the respondents be correct nothing could be done, during the minority of the infant, to protect hex against the loss which delapidation was bringing on the property. I am, therefore, of the opinion that the word “ seized ” in the section above quoted is not used in any narrow or technical sense; that it is explained by the words “any part of the real estate of such infant” in a following section. And that it includes any estate which the infant would be able to convey, but for his defect of age. 1 see no reason why an exception should have been intended by the revisers in respect to infants- when all estates were made alienable without restriction.

If we turn back to section 97 (167, p. 194) we find that an infant trustee for others may be compelled to convey, etc., as the court may direct. The language is “ seized or possessed,!’ Is there any doubt *455that tliis section would include a contingent estate thus held intrust? I have found no decision, and none lias been cited, bolding tbe contrary to tbe views thus stated. There is another view. Executed •contracts such as deeds will generally be deemed ratified unless dis-affirmed by an infant before be arrives at age or within a reasonable time thereafter. No person but the infant can set up tbe defense ■of infancy. (Beardsley v. Hotchkiss, 96 N. Y., 201 at 211.) Catharine E. Dcdge may then ratify, or fail to disaffirm, tbe conveyance made in her name by tbe special guardian, if indeed the action of Dodge v. Stevens (94 N. Y., 209) wa? not of itself a ratification. What right has Stevens, tbe respondent here, to set up tbe invalidity of legal proceedings to which tbe parties interested make no objection ?

The object of tbe statute (chap. 211, Laws of 1873) is that when three years shall bave expired after granting letters, and no application for sale of lands shall bave been made, a person may purchase in safety from tbe heirs or devisee. Here Mbs. Coulter bought in good faith. The devisees conveyed; one of them through the action of the court. The consideration was paid or secured. If there were any defect the grantor ought in good conscience to ratify. And this creditor, who has waited from the probate of the will in 1869 down to 1882, should not be allowed to assert this defect.

Decree of surrogate affirmed, with costs; costs of special guardian to be paid from fund.