Summary
In Hillen v. Iselin et al., 144 N.Y. Rep. 365, the court said: "The learned counsel for the appellant has shown that the word `descendant', according to its accurate and lexicographical and legal meaning, designates the issue of a deceased person, and does not describe the child of a parent who is still living.
Summary of this case from R.I. Hosp. Tr. Co. v. FitzgeraldOpinion
Argued December 13, 1894
Decided January 15, 1895
James C. Carter and A.W. Machen for appellants. Joseph H. Choate, Richard M. McSherry and Wm. V. Rowe for respondent.
The validity of the appointment made by Emily Hillen depends upon the true construction of the power of appointment conferred upon her by the will of Columbus O'Donnell. The donee of a special power to appoint an estate, given by deed or will, is invested with an authority merely, and unless the appointment conforms to the authority given, the appointment is invalid, in so far, at least, as it transcends the power. The validity of an act in execution of a power is determined by the principles of agency. The appellant claims that the appointment made by the will of Emily Hillen was not authorized by the instrument creating the power. If this claim is well founded the situation in legal effect is the same as if no attempt to exercise the power had been made, and the estate to which it related passed upon her death to her children, Thomas and Emily, absolutely, by force of the alternative gift in the will of Columbus O'Donnell, to take effect in the event that the power of appointment given to his daughter should not be exercised. The primary question, therefore, in this case requires a comparison between the power granted and the appointment made, and upon the result of such a comparison the case must turn. The cy-pres doctrine of the English courts, which has been applied to the construction of appointments of real estate under powers contained in wills (note to Alexander v. Alexander, Tud. L.C. on Real Prop. 299), does not prevail in this state, nor as is said, in Maryland, and cannot be resorted to to help out a defective execution of a power in a matter of substance.
The main ground of assault upon the validity of the appointment of the remainder by the will of Emily Hillen to the child or children of her son Thomas, is that such child or children were not at the death of his mother, descendant or descendants in a legal sense of their father, who was then living, and were not, therefore, objects of the power under the will of Columbus O'Donnell, which authorized an appointment to the "child or children of my (his) daughter Emily, or his, her or their descendant or descendants." The learned counsel for the appellant has shown that the word "descendant," according to its accurate lexicographical and legal meaning, designates the issue of a deceased person, and does not describe the child of a parent who is still living. The word is the correlative of ancestor. The word issue is a word of broader import and may include the children of a living parent as well as the children or descendants of one who is dead. But in an accurate sense one cannot have a living ancestor, nor can a living person, although he may have children, have descendants. But it was conceded, and it is an obvious truth, that a testator may not use a descriptive word in its literal signification, and that if in construing a will it appears from the context that he used a particular word in a broader or different sense than would attach to it unexplained, that sense is to be attributed to it which was intended by the author of the instrument. In view of this principle the learned counsel further contended that there was nothing in the context of the will or in the circumstances surrounding the situation, which qualified or enlarged the strict meaning of the word "descendant" used by the creator of the power. The learned counsel for the respondents, while not controverting the proposition that the word descendant, in legal definition, means a child or children of a deceased person who was the stirps or stock of descent, nevertheless contended that the word as used by the testator, Columbus O'Donnell, in creating the power was intended to embrace all the persons in the line of descent from any child or children of Emily Hillen; that is to say, as well the children living of a son or daughter of Emily, during the lifetime of the parent, as the issue of such son or daughter, the parent being dead. In support of this contention reference was made to the broad discretion reposed in Emily Hillen, the right of selection of the objects of appointment, and to exclude any child from the benefit of the power, and appoint the whole estate to one child to the exclusion of the other, or to the descendants of such child, the right to limit the estates to be created to a fee or a less estate in her discretion, implying a right to create successive estates for life or years, with remainders; and what was claimed to be more decisive still is the fact that the testator, in the clauses which dispose of the remainders in the shares given to his children for life, in default of appointment, used the words "descendant or descendants" in connection with express restrictive words, confining their application in terms to children or issue of deceased parents, and from this fact the inference is sought to be drawn that in the clauses creating the power of appointment he used the words in a larger and unconfined sense, because he there omitted the restrictive words, which he seemed to regard as necessary in order to confine their meaning in creating the devises over. The Special and General Terms sustained the appointment made by the will of Emily Hillen, upon the contention of the defendants that the words "descendant or descendants," in the clauses creating the power, were used in a wider sense than the strictly legal one, and that the testator in creating the power in question meant to include in one class Emily's children living at her death, and all their children and their issue, whether such children were living or not, and to vest in the mother a discretion to select any one or more of this class, and to bestow the property on one or all, as she might determine.
We think the present judgment may be affirmed without passing upon this question, which is certainly not free from difficulty. Conceding the claim of the appellant, that the words "descendant or descendants" used in the clause of Columbus O'Donnell's will creating the power of appointment in Emily Hillen were used in their primary sense, and that the appointment to the issue of her son to be valid must have been made to issue of the son, who stood in the legal character of his descendants, nevertheless, the appointment of the remainder was in our judgment strictly within the terms of the power. The power was to appoint to the child or children of the son, or to his "descendant or descendants." The donee of the power appointed the estate to the son for life, and at his death, in default of appointment by him (which was never made), she appointed the remainder to his "children and descendants, per stirpes, who are living at his death." The remainder was contingent. ( Purdy v. Hayt, 92 N.Y. 446. ) The persons entitled to take in remainder could not be ascertained until the death of the son. No estate vested in Thomas O'Donnell Hillen, the son of Thomas Hillen, on the death of his grandmother. He might die before his father, and the remainder was to child or children living at his death. But the death of Thomas Hillen, the father, would at the same moment terminate his life estate and also ascertain the descendants entitled to the fee under the appointment. The gift of the remainder was by necessary construction a gift to the descendants of Thomas Hillen, because the remainder was dependent upon his estate for life, and no person except his descendants in their character as such could take it, and until his death no estate could vest in interest in any child or children of the life tenant. It would be a very unreasonable construction of the power that an appointment of a future estate could only be made to issue of the testator's son or daughter, who should have the character of descendants at the death of the donee of the power. She was given the fullest latitude in respect to the character and quality of the estates she might create, intermediate the vesting of the fee. It is plain that the grantor of the power contemplated the probable creation of life estates and remainders. All he required was that the property should go to those of his blood, the children or descendants of his son, his daughter, her children, or one of them and their descendants, and this purpose was fulfilled by the appointment to the son of Emily Hillen and to his descendants upon his death. It seems to us plain that the appointment made by Emily Hillen was strictly within the power, giving to the words "descendant or descendants" their primary signification.
The claim that under the power the testator's daughter Emily could create only vested estates is not supported by any language in the clauses creating the power, nor, as we think, by any intention deducible from the language used, and seems to be inconsistent with the broad discretion conferred on the donee of the power to prescribe what estates her appointees should take. The fact that the testator, by the gift over in default of appointment, gave the property absolutely on the termination of the life estate to Emily's children or descendants, if any, or, in the alternative, to his other children or their descendants, does not indicate that the estates authorized to be created under the power were to be of the same absolute character. If this was his intention he presumably would have so declared. But he confided to his daughter a discretion to be exercised in view of events and circumstances which he could not know or foresee. It is undoubtedly true that the testator did not contemplate any lapse by which his estate or any part thereof would remain undisposed of. But even under his will there might be no effectual gift of the remainders in the event of Emily's dying without having exercised the power of appointment. But this was a very improbable contingency, and equally so under the appointment made by Emily.
The further claim is made that the appointment under the will of Emily Hillen is invalid as offending against the rule against perpetuities. It is well settled that the time of the suspension of the power of alienation, where appointments of future estates have been made under a power, which are claimed to be invalid for remoteness, is to be measured from the death of the testator, or, in the case of deeds, from the time of the conveyance. For the purpose of determining whether there has been an unlawful suspension of the estates created under a power, they are considered as having been created when the will or deed took effect. The law of Maryland, following the English rule, allows a suspension during lives in being at the creation of the estate, and twenty-one years and a fraction beyond in case of minority. Testing the suspension in this case by this rule, the final vesting of the estate was not unlawfully postponed. There intervened between the death of the testator, Columbus O'Donnell, and the death of Thomas Hillen, the son of Emily, but two life estates, namely, an estate for life in Emily under her father's will, and, second, a life estate in her son, Thomas Hillen, under her appointment, and both life tenants were living at the death of Columbus O'Donnell. Upon the death of the son the estate, under the appointment, was to vest absolutely in his descendants then living. These limitations were clearly authorized. It is no objection that the remainder was limited in favor of persons not in being when the limitation was created, provided that the contingency upon which the final vesting depends must happen, and the persons entitled to take be ascertained within the permitted period. ( Purdy v. Hayt, supra.) We have assumed that the title to the property was vested in the trustees during the continuance of the life estates, and was inalienable during their continuance. In this state trust estates are inalienable by force of statute, although there is nothing in the nature of such an estate which makes them inalienable ipso facto. ( Robert v. Corning, 89 N.Y. 226.) We are referred to the case of Thomas v. Gregg ( 76 Md. 169) as an authority for the contention that there was in this case an unlawful suspension. The distinction is in the application of the rule that limitations are void which may unduly suspend the power of alienation, although it may turn out that by reason of the falling in of the contingencies within the prescribed period there may be no such suspension in fact. In Thomas v. Gregg a testator created a trust for the life of his daughter, with power to her to appoint to her children or grandchildren. The daughter appointed the estate in trust for the life of her "children now living, or that may hereafter be born to me," and afterwards died, leaving three children, two of whom were living at the death of the testator, and one of whom was born after his death. The court, applying the rule that a limitation under a power of appointment must be construed as if it were inserted in the instrument creating the power, held that the appointment violated the rule of perpetuities, because it tied up the estate for the lives of persons not in being at the death of the testator, namely, the children then unborn of his daughter, and the court declared that the circumstance whether a child should be born or not after the testator's death would make no difference in the construction of the limitation. It was sufficient, the court said, that a child might be born thereafter who would be entitled under the appointment. This case proceeds on an intelligible principle, that there might be under the will (construing the appointment a part of it) a possible suspension of the period of alienation beyond lives in being at the death of the testator. The principle to which we have adverted, that the validity of a limitation is to be tested by what is possible, and not by what in fact happens, has no application in reason to the construction of a power to limit estates couched in general terms, without negative or restrictive words. It applies to estates actually limited under a will, deed or power, and a general and unlimited power of appointment to be exercised in the future is not void because under it the donee might, without departing from the express language, attempt to create an illegal estate. The power is in legal effect a power to do what is lawful and not what is unlawful. We think the estates under the power of appointment in this case were legally limited in point of duration.
The final objection is that the donee of the power nominated trustees of her own selection to hold the estate during the life of her son, thereby, as is said, disregarding the purpose of the testator, that the trustees named by him should hold the estate until the final vesting in fee. In fact, the trustees named by the daughter were, with one exception, the trustees under the will of her father. The answer of the General Term to this point is, we think, conclusive. If the appointment of new and different trustees were authorized, this departure from the power may be disregarded without affecting the beneficial interests of the appointee under the appointment. The case comes within the principle that the execution of a power will not be defeated because of some provision in excess of the power, which may be eliminated without disturbing the general scheme. (See Alexander v. Alexander, 2 Ves. Sr. 644.) Regarding the appointment of new trustees as unauthorized, and striking out the provision appointing them, there remains a complete and perfect execution of the power.
We think the judgment is correct, and should, therefore be affirmed, with costs.
All concur, except HAIGHT, J., not sitting.
Judgment affirmed.