ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(182 N.Y.S.)

hereinafter named, in trust, to divide the same into two equal parts or shares and to apply the net annual income of one of said parts or shares to the use of my son, John J. Duff, during his natural life, and upon his death I give, devise and bequeath the said part or share of said estate unto the issue then living of the said John, to be equally divided between them per stirpes and not per capita, and in case my said son should die without leaving any issue him surviving, then I direct my said executors to apply the net annual income of the said part or share to the use of * daughter, Mary Carey, during

her natural life, and upon her death, I give, devise and bequeath the said part or share to the issue of the said Mary, to be equally divided between them per stirpes and not per capita, and in case the said Mary should die without issue living at the time of her death, I give, devise and bequeath the said part or share unto whomsoever the said Mary Carey shall be a writing in the nature of a last will and testament appoint to receive the same.

"Ninth. I direct my executor aforesaid to apply the net annual income or the remaining part or share of my estate so held in trust by them to the use of my said daughter, Mary Carey, during her natural life, and upon her death I give, devise and bequeath the said remaining part or share of said estate unto the issue of my said daughter, Mary, then living, to be divided between them per stirpes and not per capita, and in case my said daughter should die without leaving any issue her surviving, then I direct my said executors to apply the net annual income of the said remaining part or share to the use of my son, John J. Duff, during his natural life, and upon his death I give, devise and bequeath the said part or share to the issue of the said John, to be divided between them per stirpes and not per capita, and in case the said John should die without leaving any issue living at the time of his death, then I give, devise and bequeath the said remaining part or share unto whomsoever the said John J. Duff shall by a writing in the nature of a last will and testament appoint to receive the same.

"Tenth. In case either the said Mary Carey or the said John J. Duff should at any time become entitled by the death of one of them to the income of both parts or shares of my said residuary estate, and the survivor of the said Mary and John should die without issue living at the time of his or her death, then I give, devise and bequeath the whole of the said two parts or shares, being the whole of the rest, residue and remainder of my said estate unto such person or persons as the said survivor shall by a writing in the nature of a last will and testament duly appointed to receive the same."

Both John J. Duff and Mary Carey survived Michael Duff, and each received a beneficial estate for life in half the residuary estate, and each received in addition a remainder for life in the other half, contingent upon survivorship after the death of the original life tenant, without issue. The remainder after the death of the life tenants was devised to the issue of the life tenants, or, in default of issue, to such person as the survivor of the two life tenants might by last will or testament appoint. The will contains no devise to other parties if the life tenants died without issue and the survivor failed to exercise the power of appointment. The daughter, Mary Carey, died without issue on the 3d day of May, 1913, and by her will devised and bequeathed her residuary estate to her brother, John J. Duff. Since she did not survive John J. Duff, she had no power of appointment under her father's will, and she did not in her own will attempt to exercise such a power.

[1] John J. Duff died without issue in the city of Washington, D. C., on January 22, 1918, and left a last will and testament in which he devised and bequeathed the residue of his estate to the plaintiffs. in trust for his wife, Clementine Farr Duff, for and during the term.

of her natural life, and after her death to transfer and convey the same to such persons as his wife may appoint, and in default of such appointment, or if his wife should predecease him, to certain parties named in the will. Although the testator does not recite or refer to the power conferred upon him under the will of Michael Duff, this provision must be deemed to be an execution of that power, if it is otherwise valid. Real Property Law (Consol. Laws, c. 50) § 175.

. [2] It is almost conceded by all parties that the provision of the will of John J. Duff is not a valid execution of the power conferred upon him by the will of Michael Duff in respect to the share of the estate originally devised to Mary Carey for life. In that portion of the estate Mary Carey was the first life tenant, then John J. Duff was life tenant, and since "the period during which the absolute right of alienation may be suspended, by an instrument in execution of a power, must be computed, not from the date of such instrument, but from the time of the creation of the power" (Real Property Law, § 178), it is quite clear that John J. Duff cannot, by virtue of the power conferred upon him under his father's will, suspend the absolute power of alienation for a third life. In my opinion it is equally clear that this provision of John J. Duff's will is not a valid execution of the power conferred upon him under his father's will in respect to the share originally devised to him for life. Under Michael Duff's will the power of absolute alienation of his whole estate was suspended during the lives of both son and daughter. Michael Duff could not by his own will have provided that John J. Duff's share should go to him for life and then to Mary Carey, or, if Mary Carey should predecease John J. Duff, then to a third person for life, and Michael Duff could not by will give to his son a power which he did not himself possess.

It is urged, however, that even if the will of John J. Duff is not a valid execution of his power to dispose of the remainder of his father's residuary estate, in so far as it creates a trust for his wife for life, the court should still give effect to the other parts of his will in so far as the will appoints others to receive the fee after the death of his wife. Possibly, if John J. Duff had no interest in the property formerly owned by his father, and could dispose of it only through the power conferred upon him by the will of his father, and the court could determine that it was John J. Duff's intention that, if the life estate he attempted to create and the power he attempted to give his wife to dispose of the remainder were not valid, the gift over to other parties should take effect, the court would find some means to give effect to this intention; but in this case John J. Duff did, in my opinion, have a personal interest in the property, and the court would violate his clear intention if it enforced any provision of the will which would deprive John J. Duff's wife of any portion of the property which he attempted to devise to her for life, or which she would receive if he died intestate. The entire scheme of John J. Duff's will shows that it was his intention to provide primarily for his wife. He gave her, not only a beneficial interest in his estate for her life, but also a power to dispose of the estate by will.

(182 N.Y.S.)

[3, 4] The rule of the statute that, the will of John J. Duff must be regarded as an execution, so far as valid, of the power conferred on him by his father's will, has no application where, in addition to the power, the testator has an independent interest in the property. Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177. The reasoning of that case applies with particular strength to the present situation. If John J. Duff had an independent interest in the property which he could devise to his wife for life, then the court must give effect to the whole will as a devise of the interest, and not as the attempted execution of a power, and if he had such interest, even if he could not devise it for life, the court should then regard the entire attempted devise as invalid, for it is clear that the testator would never have made any devise which would deprive the wife of any rights in his estate. Since Michael Duff by the residuary clause of his will failed to provide for the contingency of both his children dying without issue, and without executing the power to dispose of the remainder after the death of the life tenant, there was a reversion in his estate which he failed to dispose of by will, and which passed as if he had died intestate. At the time of his death John J. Duff and Mary Carey were his heirs at law, and any estate which he possessed at that time, and which was not disposed of by will, passed to them, or perhaps it would be more accurate to say remained in them.

[5] The contention that this reversion was a contingent future estate, which vested in the heirs of Michael Duff only when the contingency that both life tenants would die without issue, and without having executed the power conferred in the will, and that his heirs. must be determined as of the time of vesting, is supported neither by reason nor authority. A reversion under the statute is an estate in expectancy, but not a future estate. Real Property Law, § 36. It is the residue of the estate left in the heirs of a testator, commencing in possession on the determination of one or more particular estates devised. Real Property Law, § 59. The term "reversion" necessarily assumes that the grantor has not parted with his entire estate, and neither under the terms of the statute (Real Property Law, § 40) nor at common law are the rules in regard to vested or contingent estates applicable.

Since a reversion is the residue of an estate which is left in the grantor or his heirs or in the heirs of a testator, it follows that there can be no question of when this estate vested. At the death of Michael Duff the reversion in the property not devised was a residue left in his heirs John J. Duff and Mary Carey. The survivor of these heirs without issue had power to complete the alienation of Michael Duff's property, and thereby terminate the reversioner's expectant estate; but in the absence of the execution of such a power the reversion ripened from an estate in expectancy to the full fee, including the right of possession. All expectant estates are descendible, devisable, and alienable in the same manner as an estate in possession, and since John J. Duff was the heir at law and the residuary devisee of Mary Carey, at the time of his death he was the owner of the entire reversion of

Michael Duff's estate, and entirely apart from the powers given him by Michael Duff's will he had the right to devise this reversion.

It follows that the will should be regarded rather as the disposition of his own estate than the attempted execution of a power given him under his father's will. Since John J. Duff's will should not be construed as the execution of a power conferred by the will of Michael Duff, any suspension of the power of alienation created by the will of John J. Duff does not date back to the creation of the power. Michael Duff's will did not contravene the statute, and since the will of John J. Duff devises an estate which he always possessed, his will creates a new future estate in his own property, and that future estate is valid because, standing alone, it does not suspend the power of alienation for more than one life. In other words, since John J. Duff had an estate which he could freely alienate, he has not suspended the power of alienation for more than one life by devising his own freely alienable estate in trust for one life or even two lives. The mere fact that this new estate follows immediately upon a previous trust estate for two lives does not alter the rule, for the new estate does not continue the earlier trust. It constitutes a new and independent suspension of the power of alienation, which is not in contravention of the statute. See Livingston v. New York Life Ins. & Trust Co., 13 N. Y. Supp. 105,1 affirmed on second appeal sub nomine McCurdy v. New York Life Ins. & Trust Co., on opinion on previous appeal, 83 Hun, 612, 31 N. Y. Supp. 1130, affirmed without opinion, 151 N. Y. 667, 46 N. E. 1149.

Judgment accordingly.

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 59 Hun, 622.

(191 App. Div. 787)

(182 N.Y.S.)

STRANG V. WESTCHESTER COUNTY NAT. BANK.

(Supreme Court, Appellate Division, Second Department. May 14, 1920.) 1. Banks and banking 148 (2)-Liable for payment on forged indorsement, unless protected by estoppel.

Payments by a bank on forged indorsement are at the peril of the bank, unless it can claim protection upon some principle of estoppel.

2. Banks and banking 138-Not liable for payment to person intended, though he used fictitious name.

Where a depositor delivered a draft, payable to one from whom she was to receive a bond and mortgage, to her attorney, who forged the bond and mortgage and the indorsement on the draft, payee thereof being a fictitious person and the property secured by the mortgage being owned by the attorney, the bank, in paying the draft to the attorney, paid it to the person intended by the depositor, and is not liable therefor.

3. Banks and banking ~~148 (2)—Representing payee as actual person estops depositor.

A request by a depositor to a bank to issue a draft payable to a named person is a representation that the person is real, not fictitious, which binds depositor.

Rich and Putnam, JJ., dissenting.

Appeal from Special Term, Westchester County.

Action by Bessie M. Strang against the Westchester County National Bank. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Argued before JENKS, P. J., and RICH, PUTNAM, KELLY, and JAYCOX, JJ.

Mark Hyman, of New York City, for appellant.

P. A. Anderson, of Peekskill, for respondent.

KELLY, J. The facts in this case are stated in the opinion of Mr. Justice RICH.

[1] Payments by the bank upon forged indorsements are at the peril of the bank, unless it can claim protection upon some principle of estoppel. This proposition conceded by the appellant, is familiar to all of us. Shipman v. Bank of the State of N. Y., 126 N. Y. 318, 27 N. E. 371, 12 L. R. A. 791, 22 Am. St. Rep. 821. The appellant argues that in the case at bar the check in question was paid to the person to whom the maker (the plaintiff) intended it should be paid, that she desired to pay the money for a bond secured by a mortgage upon certain specific property in Peekskill, that the proceeds of the check went exactly where she intended them to go, and that in return she received the bond and mortgage which she had agreed to take. The appellant cites Judge Scott's opinion in Hartford v. Greenwich Bank, 157 App. Div. 448, 142 N. Y. Supp. 387, affirmed on opinion below 215 N. Y. 726, 109 N. E. 1077. I have some difficulty in distinguishing the case at bar from the reasoning of the court in the case last cited. [2] Plaintiff had arranged to invest her money upon a bond secured by a mortgage on certain specified property. That property actually. belonged to one Bushnell. Bushnell for his own purposes (possibly

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

« ÀÌÀü°è¼Ó »