APPEAL from a judgment of the Supreme Court, entered May 17, 1954, in Warren County, upon a decision of an Official Referee (CHRISTOPHER J. HEFFERNAN, Off. Ref.), dismissing the complaint on the merits.
John S. Hall and George M. Gunderson for appellant.
Albert Beswick for respondents.
Plaintiff Margaret Peck Mayer was the sole distributee under the will of her father and she was also appointed and qualified as administratrix of his estate with will annexed. He died possessed of a parcel of real property in Warrensburg and thus plaintiff became vested with title to that property on his death by virtue of the will and had acquired the right to sell it as owner. For reasons that will be discussed in due course, she also would have the power to sell it under certain circumstances in the exercise of her office as administratrix.
The will was admitted to probate in Warren County on May 4, 1943. Mrs. Mayer at this time lived in California and her lawyer prepared and sent her for execution a power of attorney, the language and effect of which lie at the core of this controversy. This instrument described Mrs. Mayer as 'Administratrix C. T. A. of the estate of P. Judson Peck late of Warrensburg'. It appointed her lawyer as attorney 'for me'. It authorized him 'in my name' and 'place and stead' to sell 'any property' that 'may belong to the estate of P. Judson Peck' and to apply the proceeds of the payment to the obligations of the estate.
In the usual sweeping language of such instruments it authorized the appointee to do 'all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully * * * as I might or could do * * * hereby ratifying and confirming all that * * * [he] shall lawfully do or cause to be done by virtue hereof.'The instrument was signed and sealed by plaintiff in her individual name and not as administratrix; and the acknowledgement executed in California is an individual acknowledgement.
The attorney acting under this instrument in the name of Mrs. Mayer gave a deed to the defendants on July 1, 1943, which was not recorded until three years later. The attorney who had executed the deed made no accounting to plaintiff for the proceeds which he had received on the sale of the property. We are not concerned here, however, with an account between the plaintiff and her appointed attorney, but primarily with the question whether the power of attorney executed by plaintiff was sufficient in form to authorize a conveyance of a good title to the real property.
Nine years after the execution of the power of attorney and the deed and about six years after the deed was recorded, plaintiff instituted this action in ejectment for the recovery of the possession of the real property. The complaint contains the naked allegation that plaintiff 'is the owner in fee and entitled to the immediate possession of' the property; that the defendants are in actual possession thereof; and that since the date of the execution of the deed in 1943 defendants have unlawfully 'withheld' the 'possession' of the property 'from' the plaintiff.
The answer is a mere general denial and puts no reliance on estoppel or any other equitable reason why possession should not be awarded to plaintiff; but upon the trial it was shown that plaintiff paid no taxes and that defendants on the other hand regularly paid the taxes, paid off a mortgage on the premises, and expended substantial sums for the improvement of the property. The Official Referee granted judgment for the defendants after a trial.
The controversy as it reaches us on appeal centers itself largely on a construction of the language of the instrument granting the power of attorney and whether it is, as defendants argue, or is not, as plaintiff argues, sufficient to transmit to the attorney a power to transfer by deed the title which plaintiff then had as personal owner of the land. A fair case can be made out both ways; from the words intrinsic to the instrument and from the authorities on the subject which have been cited.
Sometimes words in an instrument describing an office occupied by a party such as 'Margaret Peck Mayer, Administratrix C. T. A. of the estate of P. Judson Peck' have been regarded as merely descriptive of the person and not to affect adversely rights of the person as an individual thus described. In
Litchfield v. Flint (104 N.Y. 543) a note was made payable to 'E. B.
Litchfield, 'executor of ...