[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 227
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 228
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 229 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 231 The trust provisions of the deed of 1827 of the York street property, and of the deed of 1835 of the Bridge street property are in the same words and in our opinion of the same legal effect. We think the rule in Shelley's case, which was abrogated by the Revised Statutes, January 1, 1830, did not apply to the deed of 1827, and, therefore, the deed of that date had the same meaning as the deed of 1835, which is to be construed under the Revised Statutes. The rule as stated in Shelley'sCase (1 Coke Rep. 104) was: "When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, *Page 232 that always in such cases the heirs are words of limitation of the estate and not words of purchase" — thus giving the first grantee the entire estate, and nothing to his heirs. The same rule applied if the estate so given was an equitable one, but it did not apply if one estate was equitable and the other legal.
It will be observed that under the deed of 1827 Catharine Russ did not take an estate in freehold for her life; her trustee took the estate, and she took but the equity to have the trust enforced, or an equitable estate, and that upon her death (her husband having meantime died) her right heirs took an estate of a different quality, namely, the premises and their rents, issues and profits forever, that is, a legal estate. An active trust was declared for the life of Mrs. Russ and for her benefit, a trust ordered by Chancery, and, therefore, one which Chancery would support and enforce. Thus, although the deed was in form a bargain and sale deed under the Statute of Uses, and the legal title, instead of a fiduciary estate, was in William Cornell, the bargainee, as the rule of law then was (see revisers' notes to part 2, chapter 1, R.S., section 50), yet Chancery would convert the use for the benefit of Mrs. Russ into a trust, and declare the bargainee to be a trustee, and enforce the trust, and thus vest an equitable life estate in Mrs. Russ, whether she were under coverture or not. (Jackson v. Cary, 16 Johns. 302.) But being under coverture, and the object of the trust being to protect her estate from the control of her husband, and secure it to herself and her heirs, this would most certainly be the case. (4 Kent's Com. 218, 230.) The trust as to the right heirs was also ordered by Chancery, and the deed was taken pursuant to its order; but that trust was a formal or passive one, since the trustee had nothing to do, not even to convey to them, to protect or perfect their remainder, and, therefore, their remainder would in equity be treated as a legal estate. It was declared to be a legal estate by the retroactive and prospective declaration of the Revised Statutes. (1 R.S. 727, secs. 45, 46, 47; ib. 750, sec. 11.) "Formal trusts," said the revisers in their notes, "we propose to abolish by converting those which now *Page 233 exist into legal estates, and prohibiting their creation in the future." But this was only making the long-established equitable rule a legal rule; it wrought no change in vested estates; the statute accomplished what equity would decree.
Thus Mrs. Russ had an equitable estate for life, and her right heirs took as purchasers the remainder in freehold. (4 Kent Com. 210, 211.) This diversity in quality of the estates given respectively to Mrs. Russ and to her right heirs would not permit the grant over to her right heirs to be construed as a limitation, that is, as descriptive of the inheritable quality of her estate, vesting the whole title in her, through her heirs forever, but required such gift over to be construed as a purchase, that is to say, the remainder was sold to her right heirs and not to herself, giving them the freehold estate in remainder precisely as the Revised Statutes now declare. (1 R.S. 725, sec. 28; Vanderheyden v. Crandall, 2 Denio, 9; Striker v. Mott, 28 N.Y. 82; Smith v. Scholtz, 68 N.Y. 41;Schoonmaker v. Sheely, 3 Denio, 485; 4 Kent Com. 247, 256.)McWhorter v. Agnew (6 Paige, 111) is not in point, because the equitable estate was granted to the wife for life with a general power of appointment. The right to the use of the whole for life, with right of disposition of the remainder, when fully executed could not be afterwards questioned, whether the rule inShelley's case applied or not.
One method of conveyance, as stated in Vanderheyden v.Crandall (supra), was to convey the estate to trustees and their heirs in trust for the person who was to have its beneficial use for life, and upon a further trust to preserve the contingent limitations and with remainders over, thus preventing the several estates from merging. This precaution, says Chancellor KENT (4 Com. 258), is still used in settlements on marriage, or by will where there are contingent remainders to be protected. The legal estate remains in the trustees, subject to the trust, and the cestui que trust for life has only an equitable estate.
In ante-nuptial contracts, with a view to a subsequent settlement, the limitation of real estate to the husband and wife *Page 234 for their lives and the life of the survivor, remainder to the heirs of the bodies of the parents, or to their "right heirs," made such heirs purchasers, otherwise the provision intended for such heirs might be defeated by the conveyance of their parents or of the trustee, a result which equity would not tolerate. (Bingham on Infancy and Coverture [Am. edition, 1828], 365; Story's Eq. sec. 983.) Much less, we may readily infer, would equity tolerate such a defeat when the chancellor himself had made the post-nuptial settlement with the intent to provide for the children.
We shall next consider whether any injustice was done to Mrs. Russ in either deed, so that a trust in the whole estate resulted in her favor.
When Catharine Cornell and John A. Russ intermarried in 1826 she was a minor, eighteen years of age. She was entitled, under the will of Nicholas R. Cowenhoven, deceased, to a one-seventh interest in certain real estate upon the death of her father, William Cornell, if she should survive him. That interest was, after her marriage, in proceedings duly had before the chancellor for the purpose, sold for $6,000 March 8, 1827. Contingencies might have arisen which, under the will of Cowenhoven, would have defeated her interest, but they never did arise. The proceeds were still real estate so far as the rights of husband and wife were concerned. (Ellsworth v. Cook, 8 Paige, 643.) If the proceeds were personal property then they would belong to the husband upon his reducing them to his possession. John A. Russ, by virtue of his marital rights, was entitled to all of his wife's personal property which he could reduce to his possession, and to the income and profits of his wife's real estate, and thus of its proceeds for their joint lives, and in case a child of the marriage should be born alive, until his own decease if he should survive her. (2 Kent's Com. 130.) But the proceeds were under the control of Chancery in the hands of the wife's father, William Cornell, whom the court had appointed her guardian to sell her interest and hold the proceeds subject to "such order as he (the chancellor) shall deem fit touching the investment *Page 235 and disposition of the proceeds." Thus the aid of the court was requisite to enable the husband to obtain possession of the wife's property, and thus the court was vested with the jurisdiction and power to make such an order respecting its disposition as should protect the wife's equities. (Story's Eq. sec. 1404; Howard v. Moffatt, 2 Johns. Ch. 206; Dumond v.Magee, 4 ib. 318; Kenny v. Udall, 5 ib. 464; Udall v.Kenney, 3 Cow. 590; Mumford v. Murray, 1 Paige, 620.) And this equity would be granted whoever might be the applicant to the court, the wife, her trustee or her husband. (Ex parteCoysgame, 1 Atk. 192; Mealis v. Mealis, cited in Elibank v. Montolieu, 5 Ves. 737, at p. 739.)
"The wife's equity to a reasonable provision out of her property for the support of herself and her children makes a distinguished figure in the modern Chancery cases which relate to the claims of the husband upon the property of his wife in action." (2 Kent's Com. 139.) "Where the husband seeks to recover his wife's property, and he has made no settlement upon her, he shall not have it without making a suitable settlement." (Story's Eq. sec. 64c.) That her children born or to be born of the marriage should be protected in these post-nuptial judicial settlements, as well as herself, appears by the cases last above cited and by abundant other authority. The court would assume as a matter of course that she was as anxious for her children as for herself, and that when she asked for herself she asked also for her children. When the court of its own motion interposed for her protection, it did so for her children also. (1 White Tudor's Leading Cases in Equity [6th ed.], 516; 1 Daniel Ch. Pl. Pr. 106; 2 Perry on Trusts, sec. 627; 2 Pomeroy Eq. Jur. sec. 1114; Smith's Manual Eq. 469; Adams' Eq. 47.) The equity rule was at first limited to the wife's personal property, but later was extended to her realty. (Haviland v. Bloom, 6 Johns. Ch. 178; Story's Eq. secs. 1406, 7, 8, 17, and cases there cited.) Naturally the provision for her children would come into force upon the death of both her husband and herself; that is to say, out of the reversion remaining in her after her husband's *Page 236 death over which the marriage gave him no control. This reversion was her property, whether technically her separate estate or not. (Albany Fire Ins. Co. v. Bay, 4 N.Y. 9; 2 Black. Com. 433.) But she could not during coverture dispose of it by will (1 R.L. 365; 2 R.S. [2d ed.] 2, sec. 1), and until the decision by a divided court in 1850 of the case just cited, it was doubtful whether she could, without her husband joining with her, convey it. She certainly could not before the act of 1848, for the more effectual protection of married women, bar his right of tenancy by curtesy.
The defendants insist that the chancellor had no power to direct that this reversion be vested in her right heirs as a remainder upon the death of herself and husband, since it would be depriving her of her property without compensation, without her consent, she being an infant and incapable of consent, and also under coverture, which suspended her legal existence or incorporated it into that of her husband. (2 Black. Com. 433.) But her consent during her infancy was not necessary to the chancellor's jurisdiction. The fund was in court subject to his judicial disposal. The proceeding was not to deprive her of her estate, but to confirm her equities in it. Her consent would be necessary to a deprivation but not to a confirmation of her equities. She was competent to marry, and had married, and thus had conferred upon her husband, notwithstanding her infancy, his marital rights over her property and had suspended her own. The chancellor could not and would not surrender control of her property without requiring her husband to do equity, that is, to make suitable provision for her and her children. To do this he first ascertained by means of a reference all the material facts, and then made his order. Thus he supplied to the infant his ripe judgment and sound discretion and protected her from any prejudice from her own incompetency and disability. The whole matter was within his judicial discretion. (Smith's Manual Eq. 469.) The wife and her interests were bound by his order. (Cahill v. Cahill, L.R. [8 App. Cases] 420.) The chancellor's jurisdiction did not proceed from the consent of the wife, but from his power in *Page 237 equity under the circumstances over the husband's legal rights, and his corresponding duty to protect the wife's equity. That he did in fact protect her equities admits of no dispute. Instead of allowing her husband to have the custody and income of it during her life, he never gave him the custody, but gave it to her trustee and the income to her. He allowed the husband nothing, except such as his possible tenancy by the curtesy might give him if he should survive her; he directed that the remainder upon the death of both husband and wife should go to her right heirs. Thus her husband's heirs other than her children by him were excluded. Her children surviving her and the children surviving her of any child who should predecease her would be her right heirs. "Right heirs" is a term formerly in use in the creation of estates tail to distinguish the preferred to whom the estate was limited from the heirs in general, to whom upon failure of the preferred heir and his line the remainder over was usually finally limited. With the abolition of estates tail the term has fallen into disuse. If no preference was made among the heirs, it would not import any, and, therefore, it here means the same as the single word "heirs." The chancellor used it in that sense no doubt, intending thereby the children of Mrs. Russ surviving her, or the children of any child who should predecease her. Of course it was possible that she might leave no issue, and then her collateral heirs would take. This event has not occurred, and we need not inquire into the hypothetical rights of such collaterals. The chancellor did provide for Mrs. Russ and her children and the children of such child as predeceased her, and this was within his jurisdiction. The result was, as the event shows, that none of these premises or their income came to the hands of the husband. The only possible ground of complaint is that the reversion was not reserved to Mrs. Russ. But it was not reserved because in making provision for the wife and her children there was nothing else left for the children after giving the wife an estate for life; provision had to be made for them. Her husband's right as tenant in curtesy initiate could not be taken *Page 238 from him. (Wickes v. Clarke, 8 Paige, 161.) The wife was not deprived of her reversion; she was allowed an ample equivalent for it. Moreover it may well be that the husband would have insisted upon more and have obtained it if this provision for the children had not been made. (Edwards v. Countess of Warwick, 2 P. Wms. 171.) If at any time afterwards, notwithstanding her infancy or coverture, she had supposed that she was too greatly prejudiced by the settlement, either by the improvident order of the chancellor, the mistake of the scrivener who drew the deed of 1827, or by the fraud, actual or constructive, of any actor in the proceeding, she could have invoked Chancery to amend the settlement. One of the powers inherent in Chancery is the protection of infants and their estates. (Anderson v. Mather,44 N.Y. 249.) And, also, before the modern bestowal of separate legal rights upon married women, the protection of their separate equitable estates. (Temple v. Hawley, 1 Sandf. Ch. 153.) This for the reason that if Chancery had made a mistake or an improvident order in the disposition of a married woman's equities in her own estate, it was willing in a proper action, rehearing or proceeding for the purpose, to correct it, if it was still practicable to do so. It is obvious that she could not by her mere disaffirmance upon attaining her majority invalidate the order and settlement, since both had proceeded from the court. The order was a final one. It lacked no essential of finality either in jurisdiction, power or regularity. Ante-nuptial settlements are different. They rest upon contract, and an infant's contract is voidable. (Jones v. Butler, 30 Barb. 641; Temple v. Hawley, supra.) In post-judicial settlements of the wife's property, of which the court had the custody, the only instance in which the wife's consent was necessary was to waive her equities in favor of her husband. (Story's Eq. 1418.) She could waive all or part, and could, therefore, consent to the disposition made by the chancellor in her husband's favor against herself. The absence of a waiver of her equities in favor of her husband would be a sufficient basis for a settlement by the court in favor of herself and her children, and *Page 239 thus no evidence of her consent to the latter settlement would be necessary. (Glen v. Fisher, 6 Johns. Ch. 33.) We need not, therefore, seek for affirmative evidence of the wife's consent. When she was an infant the court protected her equities. By virtue of the deed of 1827 she had a separate equitable estate for life in the York street premises, and when she attained her majority she could upon a separate examination apart from her husband unite with her trustee and with her husband in conveying it under permission of the Court of Chancery. (Albany Fire Ins.Co. v. Bay, supra.) If she could unite with them she could refuse to do so. So with respect to the purchase of the Bridge street premises. She was thus dealing with her separate estate as to which in equity her powers, to the extent that Chancery had defined them, were the same as if she were a feme sole. We thus have her ultimate consent to the Bridge street deed. Thereafter and until 1866 she was in possession of the Bridge street premises. She could convey to her son, John A. Russ, Jr., no greater estate than she had. Thus until her death in 1894 she had the benefit of the transaction without making complaint.
In 1852 she obtained a judgment of absolute divorce against her husband, which by its terms transferred to her his interest in the premises. She never asserted any disability of coverture, and if, as we do not think, it held the validity of either deed in suspense, it was removed. By the act of 1849, ch. 375, amending ch. 200 of the Laws of 1848, "for the more effectual protection of married women," the trustee could on her request and with the approval of a justice of the Supreme Court, convey to her whatever he held as trustee for her, but nothing more. He did make such conveyance, and presumably she was content with it. She did nothing and could do nothing to defeat the interests of her right heirs, as settled in the deed of 1835. (Neves v. Scott, 9 How. [U.S.] 196.)
Ulmer C. Russ, her son, predeceased her, and, therefore, never became her heir, and his deed to John A. Russ, Jr., simply conveyed his expectancy, which failed by his death.
When she died in 1894, the plaintiffs as her right heirs, *Page 240 and, therefore, under the deed of 1835 purchasers of one-third of the Bridge street premises, were entitled to the possession thereof.
The judgment should be reversed, new trial granted, costs to abide the event.