Appeal from Special Term, Kings County.
[116 N.Y.S. 390] Henry L. Wyckoff died on the 28th day of January, 1879. He was seised of an estate in fee simple in an undivided five-sixteenths of a farm in the then town of New Lots, which afterward became part of the city of Brooklyn. This estate was subject to an outstanding life estate in his mother, Sarah Wyckoff, who was in the actual possession thereof. He left him surviving his widow, the defendant Maria Wyckoff, and one child, the defendant Abraham Vanderveer Wyckoff. He left a will which was duly proved and which provided as follows:
" First. I give to my wife, Maria Wyckoff, in lieu of dower the use and income of all my real and personal property to be paid to her by my executors so long as she shall remain my widow.
" Second. On the death or remarriage of my wife, I give all my property real and personal which I may own or be entitled to or interested in at my decease in equal portions to my children then living and the issue of such as may have died, such issue to take the share the parent would take if living.
" Third. I give and devise all my real and personal estate of whatever nature or kind to my wife, Maria Wyckoff, the executrix and to my brother, Jacob S. Wyckoff, the executor of this my last will and testament hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies hereinbefore specified with full, absolute and complete power and authority to such of them as may qualify and to the survivor of them to grant, sell, convey, mortgage, lease or exchange, all or any part or parts of my real estate, at public or private sale at such time or times and upon such terms and in such manner as to them shall seem meet."
Both Maria Wyckoff and Jacob S. Wyckoff qualified as executors, but no account of their proceedings as such has ever been filed. Jacob S. Wyckoff died in the year 1881. On the 29th of January, 1890, all of the owners of the said farm entered into a contract to sell the same to Edward F. Linton for a price exceeding $200,000. In this contract Maria Wyckoff described herself as the sole surviving executor and trustee under the last will and testament of Henry L. Wyckoff, deceased. About the 1st day of May, 1890, she executed [116 N.Y.S. 391] a deed in which she is described in the same manner as in the contract. The deed recites that she executes the same by virtue of the power and authority to her given by said last will and testament. It contains a covenant that she is lawfully the executrix of the said will and has power to convey, that she has in all respects acted in making the conveyance in pursuance of the authority granted in and by said last will and testament, and that she has not made, done, committed, or suffered any act, matter, or thing whatsoever since she was executrix as aforesaid whereby the above-granted premises shall or may be impeached, charged, or incumbered in any manner whatsoever. The proportionate part of the purchase price which the estate of Henry L. Wyckoff was entitled to receive was $54,062.50, which was paid to her partly in cash and the residue by the bond of the said Linton, secured by a purchase-money mortgage on the said premises. Thereafter, from time to time, the said Maria L. Wyckoff, upon receiving payment of a part of the principal of the said mortgage, released portions of the property covered thereby, until on the 1st day of May, 1903, when the balance of the mortgage remaining unpaid was paid to her, she executed and delivered a satisfaction piece thereof.
The farm conveyed to Linton was thereafter cut up into lots. Large sums of money were expended in laying out streets, grading, paving, flagging, and curbing them, and in installing a water and sewerage system. Several hundred of the lots have been sold to various persons, who have erected buildings thereon, and the plaintiff in this action, who acquires his title from the said Linton, is now the owner of more than 400 of said lots. In November, 1906, the defendants in this action claimed that the deed made by Maria Wyckoff was ineffectual to convey the property therein described, and was utterly void, and that they were still the owners of the said lots or of some interest therein. Thereupon this action was commenced to determine the validity of such claims.
Wm. E. C. Mayer, for appellant Maria Wyckoff.
Jas. Crooke McLeer, for appellant Abraham Vanderveer Wyckoff.
Henry F. Cochrane, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, BURR, and RICH, JJ.
The appellants contend that the deed executed by Maria Wyckoff to Edward F. Linton under the power of sale contained in the will of Henry L. Wyckoff was void because, as Mrs. Wyckoff was the sole surviving trustee of the trust created by said will and also the sole beneficiary thereof, she was incompetent to make such conveyance. Haendle v. Stewart, 84 A.D. 274, 82 N.Y.Supp. 823; Woodward v. James, 115 N.Y. 346, 22 N.E. 150; Greene v. Greene, 125 N.Y. 506, 26 N.E. 739,21 Am.St.Rep. 743; Losey v. Stanley, 147 N.Y. 560, 42 N.E. 8; Rogers v. Rogers, 111 N.Y. 228, 18 N.E. 636.This contention is based upon a misapprehension of the character and extent of the trust estate and of the estate in remainder, and also of the scope and purpose of the power of sale.
The will of Henry L. Wyckoff gave to his wife, Maria, the use and income of all his real and personal property to be paid to her by his executors so long as she remained his widow. There was thereby created a valid trust under the statute of uses and trusts in force when this will took effect. 1 Rev. St. (Ist Ed.) pt. 2, c. 1, tit. 2, § 55, subd. 3; Putnam v. Lincoln Safe Deposit Co., 191 N.Y. 166, 83 N.E. 789.The testator's son, Abraham Vanderveer Wyckoff, took a vested estate in the remainder, subject to be defeated by his death during the lifetime of his mother. Moore v. Littel, 41 N.Y. 66; [116 N.Y.S. 392]Matter of Tompkins, 154 N.Y. 634, 49 N.E. 135; Stringer v. Young, 191 N.Y. 157, 83 N.E. 690.When the testator died his son was then living, and there was an absolute gift to him as soon as the precedent estate terminated. His death before his mother, leaving issue, was a contingency upon which such remainder might vest in his issue; but it was not an event upon which the vesting in him depended. As said by Judge Gray in the Stringer Case, the contingency (that is, his death within the period named) " was a possible event *** which should operate to divest those interests. It was not a gift limited to take effect upon an uncertain event. It was a gift which the uncertain event might chance to defeat."
The case of People's Trust Company v. Flynn, 188 N.Y. 385, 80 N.E. 1098, relied upon by the appellants in support of the contention that this was a contingent and not a vested remainder, was decided, as is true with all other cases involving the construction of wills, upon the facts peculiar to that case. The devise in remainder was, among others, to the issue of testator's daughters, Mary and Regina. At the time of his death his daughters had no issue, and the contingency upon which the vesting of that estate depended was the subsequent birth of such issue. The provision of the statute of uses and trusts (1 Rev. St. [1st Ed.] pt. 2, c. 1, tit. 2, art. 2, § 60) that every express trust valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustee in law and equity, subject only to the execution of the trust, has been construed to mean not ...