expressly, under the 96th section of this act, or by virtue of a power in trust.5 In the latter case the legal title may descend, result, or vest in persons otherwise entitled, without regard to the trust power, which overrides the legal estate thus vesting, descending or resulting. But it is to be remarked, with some care, that a merely passive use, which does not direct or authorize the performance of some active trust by the trustee, may not operate as a power in trust.9 8 Legal Estate of Trustees Functi Officio Vests under this Act. The Revised Statutes were so framed as to vest even trust estates lawful, in those next entitled10 without the necessity of any conveyance, when the purposes of a trustee no longer required him to have the legal title." At common law, a fee in trustees never could become a legal estate of those next legally entitled, except through the medium of a conveyance.12 In a modern case in New York the rule of the common law on this point is so stated as to make it appear that the estate of a trustee before the Revised Statutes devolved on the persons beneficially entitled whenever trust purposes ceased.13 But it is apprehended that this confuses another principle: viz., that 4 Formerly R. S. 728, § 55. 58 99, Real Prop. Law; N. Y. Dry Dock Co. v. Stilman, 30 N. Y. 174, 194. 68 99, Real Prop. Law. 7899, Real Prop. Law; Wright v. Douglass, 7 N. Y. 564, 576. 88 99, Real Prop. Law; The Syracuse Savings Bank v. Holden, 105 N. Y. 415. 9 Townshend v. Frommer, 125 N. Y. 446, 447; cf. Heermans v. Burt, 78 id. 259, 267; Campbell v. Stokes, 142 id. 23; Lewis v. Howe, 64 App. Div. 572; Murray v. Miller, 178 N. Y. 316. 10 §§ 102, 109, Real Prop. Law, formerly R. S. 729, § 62; 1. R. S. 730, § 67. 11 Selden v Vermilya, 3 N. Y. 525; Ring v. McCoun, 10 id. 268, 271; Briggs v. Davis, 20 id. 15, 22; Matter of Livingston, 34 id. 555, 567; Kip v. Hirsch, 103 id. 565, 570; Watkins v. Reynolds, 123 id. 211; Nat. Bank of Commerce v. Nat. Bank of New York, 17 Misc. Rep. 691; Rose v. Hatch, 125 N. Y. 427, 431, 432; Helck v. Reinheimer, 105 id. 470, 475; Miller v. Wright, 109 id. 194, 200; Townshend v. Frommer, 125 id. at p. 461; O'Donoghue v. Boies, 159 id. 87, 97; Buchanan v. Little, 6 App. Div. 527; Lewis v. Howe, 64 id. 572; cf. Adams v. Adams, 114 App. Div. 390, 396; Coster v. Coster, 109 N. Y. Supp. 798, 800. 121 Prest Est. 144; sed. cf. 1 Sugd. Pow. 230, citing Rich v. Beaumont, 3 Bro. P. C. 308, where wife had a power of revocation and appointment which she exercised; see, also, 2 Chance, Pow. 7, on same case. It is questionable whether, in that case, trustees had a fee simple absolute. An outstanding term in trustees was, however, at common law sometimes presumed to be satisfied, or surrendered, without proof of a conveyance. I Jones, Attys.' Pocket Book, 4, and cases there cited. 13 Bennett v. Garlock, 79 N. Y. 302, 324. by construction, courts of equity would so limit the legal estate of trustees as to make them commensurate with the trust,14 and when the trust purpose ceased, would compel the trustees to convey the outstanding legal title.15 If this were not the old rule, why the necessity of the so-called "vesting acts" in England? Of course these observations apply only to those cases where the trustees took a fee, for if their estate was less in quantity then the next limitation took effect, or the estate resulted when the trustee's estate came to an end by lapse of time or otherwise. Saving Trustees' Estates Existing before 1830. The latter part of this section,16 referring to trusts existing on the 1st day of January, 1830, was intended to save all anterior trust limitations and estates which were not purely passive uses.17 If they were those active trusts now classed as powers in trust, the legal title of the trustees was thus saved; but if they were mere passive uses or trusts the legal title vested in the beneficiaries under the general rule.18 Covenants to Stand seised-Declarations of Uses. A covenant to stand seised has been said to be still operative as a conveyance under the existing statute executing uses in possession.19 This form of conveyance was recognized as a legal conveyance after the Statute of Uses (27 Hen. VIII), as it was theretofore recognized in equity.20 How far the covenant to stand seised must be contained in a deed delivered, in order to have the statute operate, is a question for further consideration.21 At common law it could take effect without delivery.22 Blood or an intended marriage are alone the consideration which support a covenant to stand seised,23 and a deed 14 Lewin, Trusts, 213, 221, and cases cited. 156 Cruise Dig. 203; Lewin, Trusts, 684, 686; cf. Briggs v. Davis, 20 N. Y. at p. 22. 16 92, supra, p. 421. 1 Cushney v. Henry, 4 Paige, 345; Anderson v. Mather, 44 N. Y. 249, 258. 18 Matter of De Kay, 4 Paige, 403; Frazer v. Western, 1 Barb. Ch. 220, 238; affd., 3 Den. 610. 19 Eysaman v. Eysaman, 24 Hun, 430; cf. Nat. Bank of Commerce v. Nat. Bank of New York, 17 Misc. Rep. 691; Hayes v. Kershaw, I Sandf. Ch. 258; Lewis v. Howe, 64 App. Div. 572. 20 Smith, Compend. Real & Pers. Prop. 573. Between others than relations it was operative as a bargain and sale if founded on a valuable consideration. Id. at p. 575. 22 21 Infra, § 244, Real Prop. Law. 2 Black. Comm. 307, note. 23 Rogers v. Eagle Fire Ins. Co., 9 Wend. 611; Roberts v. Roberts, 22 Wend. 140; Jackson ex dem., etc. v. Swart, 20 Johns. 85; 3 Prest. Abstracts of Title, 13; Lynch v. Livingston, 8 Barb. 463; affd., 6 N. Y. 422; Corwin v. Corwin, 6 N. Y. 342, 9 Barb. 219; Jackson v. Cadwell, I Cow. 622; cf. Jackson ex dem., etc. v. Dunsbagh, I Johns. Cas. 91; Jackson v. Sebring, 16 Johns. 515; Russ v. Maxwell, 94 App. Div. 107, 113. to a stranger cannot be supported as a covenant to stand seised.2 24 It would seem that in a late case the conveyance might have been supported as a covenant to stand seised. No appeal was, however, taken from the judgment, as defendant also took title under a will which was subsequently probated. The opinion, therefore, does not seem very authoritative.25 A deed to declare uses upon a separate conveyance by fine was at first operative after the Revised Statutes,26 and a conveyance to declare uses still may be valid when the conveyance is contained in a separate instrument, notwithstanding conveyances by fines and recoveries are now abolished.27 24 Schott v. Burton, 13 Barb. 173; The Bank of the United States v. Housman, 6 Paige, 526; Roberts v. Roberts, 22 Wend. 140; Goodell v. Pierce, 2 Hill, 649; 2 Washb. R. P. 614 (1st ed.); Fowler, Hist. R. P. 88. 25 Boon v. Castle, 61 Misc. Rep. 474. 26 Willard, Real Est. & Conv. 444; Eysaman v. Eysaman, 24 Hun, at p. 434; 2 R. S. 135, 87; amd., chap. 322, Laws of 1860; 2 R. S. 343, § 24. 272 R. S. 343, § 24; Eysaman v. Eysaman, 24 Hun, at p. 434; Bank of Commerce v. Bank of New York, 17 Misc. Rep. 691. § 93. Trustee of passive trust not to take. Every disposition of real property, whether by deed or by devise, shall be made directly to the person in whom the right to the possession and profits is intended to be vested, and not to another to the use of, or in trust for, such person; and if made to any person to the use of, or in trust for another, no estate or interest, legal or equitable, vests in the trustee. But neither this section nor the preceding sections of this article shall extend to the trusts arising, or resulting by implication of law, nor prevent or affect the creation of such express trusts as are authorized and defined in this chapter. Formerly section 73, Real Property Law of 1896, chapter XLVI, General Laws: § 73. Trustee of passive trust not to take.- Every disposition of real property, whether by deed or by devise, shall be made directly to the person in whom the right to the possession and profits is intended to be vested, and not to another to the use of, or in trust for, such person; and if made to any person to the use of, or in trust for another, no estate or interest, legal or equitable, vests in the trustee. But neither this section nor the preceding sections of this article shall extend to the trusts arising, or resulting by implication of law, nor prevent or affect the creation of such express trusts as are authorized and defined in this chapter.28 Section 73 was formerly 1 Revised Statutes, 728, sections 49, 50: 8 49. Every disposition of lands, whether by deed or devise hereafter made, shall be directly to the person in whom the right to the possession and profits, shall be intended to be invested, and not to any other, to the use of, or in trust for, such person; and if made to one or more persons, to the use of, or in trust for, another, no estate or interest, legal or equitable, shall vest in the trustee.29 8 50. The preceding sections in this Article shall not extend to trusts arising, or resulting by implication of law, nor be construed to prevent or affect the creation of such express trusts, as are hereinafter authorized and defined.30 Construction of Section. This section is construed as complementary of the foregoing section; 31 and while it declares expressly that 28 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, 8 460. 29 Repealed, chap. 547, Laws of 30 Repealed, chap. 547, Laws of 1896. 81 Real Prop. Law, § 92. under the circumstances indicated in the section no estate shall vest in the trustee, yet the courts do not construe such a conveyance as void, but hold that it is operative to carry the title to the intended beneficiary.32 In this respect the Revised Statutes differed from the old Statute of Uses, which required a person to stand scised to a use before the statute would transfer the seisin.35 33 So that now, when a conveyance or devise limits an estate on trusts not recognized as one of the four authorized trusts,34 or not permitted to take effect as powers in trust,35 such conveyance or devise is not necessarily ineffective in toto, but is operative to carry the estate to the persons really intended by the settlor to be benefited as usufructuaries of the grant or devise.36 But when the grantor is the sole beneficiary of a use or trust not within the four express trust purposes, no title vests in the grantee, but the title is left in the grantor.37 Saving Clause. The saving clause attached to this section excepts all trusts arising, or resulting, by implication of law,38 and all express trusts saved by the statute,39 from the operation of the other portion of the section. Classification of Trusts before the Revised Statutes. Before considering what are "implied" trusts under this section, let us briefly recall 32 Helck v. Reinheimer, 105 N. Y. at p. 475; Denison v. Denison, 185 N. Y. 438, 443; cf. Justice Bronson, Root v. Stuyvesant, 18 Wend. at p. 278; Nat. Bank of Commerce v. Nat. Bank of New York, 17 Misc. Rep. 691; Syracuse Savings Bank v. Holden, 105 N. Y. 415; Siedelbach v. Knaggs, 27 Misc. Rep. 110; affd., 40 App. Div. 169; Wendt v. Walsh, 164 N. Y. 154; Guental v. Guental, 113 App. Div. 310, 314; Adams v. Adams, 114 id. 390, 394; Jacoby v. Jacoby, 188 N. Y. 124. 33 1 Sanders, Uses & Trusts, 85; Challis, 313. 34 Under 896, Real Prop. Law. 35 Real Prop. Law, 88 97, 99; Townshend v. Frommer, 125 N. Y. 446; McComb v. Title Guarantee & Trust Co., 36 Misc. Rep. 370; Matter of Stewart, 88 App. Div. 23, 30. 36 Downing v. Marshall, 23 N. Y. 366, 379; Helck v. Reinheimer, 105 id. at p. 475; Root v. Stuyvesant, 18 Wend. at p. 278; Wendt v. Walsh, 49 App. Div. 184; modified, 164 N. Y. 154; Western Union Tel. Co. v. Shephard, 169 id. 170, 182; Matter of Gawne, 82 App. Div. 374; Ullman v. Cameron, 92 id. 91; affd., 186 N. Y. 339; Matter of De Rycke, 99 App. Div. 596, 597; Lewis v. Howe, 64 id. 572, 575, 576; Scheer v. Long Island Railroad Co. 127 id. 267. 37 Heermans v. Burt, 78 N. Y. 259, 266. 38 Formerly R. S. 727, § 50. |