The New York herald., 1877-07-08


| Is, In form, direction TO the trustees 70
convey them does not dero,ate from the vestius
quality OF their equitable interests In tho meantime
Tue conveyance would be necessary for the purpose
OF clothing them with tho legal estate. In applying
we are met by tho alternative character OF The
trust--namey, tnat the trustee snail elmer
collect aud receive the and profits ana pay them
over TO Nine JumeI or al her election. sha permit
her use, occupy ana possess the premises ana COZ
and the rcnts and profits 10 her separate
use and In either case TO convey she might direct,
or 10 her heirs IN case TO direction DC gwen. lne
irst Of these alternatives accoruing 10 Tue cases,
would be valid trust hui the second equivalent TO
nothing more than a moro trust for her use and
| cuAxcgLLoR wALwoRrH's OPINION.
During the lite OF her husband lwho died 10 lS32)
might perhaps be fairly coniended nat .ne existence
her the enjoyment OF the property as separate
from the control OF her husband But after
his death option Of managing the property herself
being her and not in the trustee, We are inclined 10
think that tho trust becomes mere passive one,
| and that the equitable estates were, BY the
revised statutes, converted into legal ones.
This view Is corroboralsd by tho opinion OF
| Chancellor Waleorth, who had before h,m some ques
lions concorning portion Of the estate 1880 aud
Who in relation 10 Nine. Jumes interest. used TINS
Ianguageier equitable interest therein, Ms cestni
quo trust being turned iuto legal estate by tho pro-
VISIONS OF the revised statutes, citing the section
above referred Jumel Juinel, Paige, 5s5l II
is Irue as said by the counsei tho appelloes, that
the point ia question was not necessary 70
tho decision 'has s case, oas IN ,ne m,nsn, upss,
judge whom the very matter was before his mind
and have not been referred to any New YORK
ever the which we take OF this case will not rem
der il material whether the estates created by the
trust and appointment bocame legal ostates or re-
NAMED as they were originally, merely equitable IN
their nature
The more material question to the effect of the
conyeyances made by Nine. Jumel and by the trustee
in obedience 10 her direction ana appointment subse
quent to the death OF her husband We may dismiss
The notion which pervaoes the argumento the counsei
for the appeees tha. these oonveyances % Mere Mere raaa
Bownes Tor Mrs. chased However proper that ap-
ponment may have been, considering the relations
which the appointee sustained TO Mr.. Junel aud his
wi e. as their adopted daughter 1t was nevertheless
only voluntary one and the subsequent appoint
menty can In wise be regarded as frauds upon 1t.
They were or they NOT such appon' men's as
Nine. Jume still had the power to make, and their
effect TO be judged oil by the nature OF her power ana
By that circumstance alone
A MULTIPLICITY OF ''PowERs''
1t IL conended by the counsel for the appellant that
where several distinct powers gwen in the samc
instrument the execution oil one OF these powers supe
rior dignity 10 others Will supersede and override
the lat ter though executed first THIS Is to certain
extent true as shown and explained by Mr. Susden
his work Powers IN tho passages referred TO- The
execution for example, OF power Of sale VIII super
cede all other powers Tor necessarily do so in
order to have any effect. Mr. Sugden IN illustrat-
u must ID defeat att every limitation Of the estate,
whether created directly by the deed or
Through the medium OF power exoep. s,i, estates
the purchaser, Tor example, lessee, ior every object
OF sale Is 10 euable conveyance 10 pur-
chaser discharged the OF the settlement and II
is minaterial whether any particular use was really
contained the original settlement or was introduced
power contained in it," u Sugd. on Powers, ALAS
Otn edl In the present there was
psNuro powae and Dispose That the latter power
included power to ''se" ID not only manifest from
The words but from subsequent passage of the trust
which directs to the disposition OF the purchase
money I'm case OF an absolute SALE" At tho same
Lime tho words are so general as 10 authorize dispo-
favor Of volunteer, or gratuons beneficiary
Here, then, really two distinct powers contained
clause; and according 10 the rules laid down by
MIR. Sugden power to sell Is the superior power,
and will override the other power, and supcrsede It II
previously exercised
This rule with regard to the relative priority ana
dignity OF different powers in the same instrument,
intention OF tho donor, somewhat analogous 10 the
rule adopted by the courts In conslrung the Act vi
21th Elizabeth respecting fraudulent conyoyances
1t has been invariably held under that act
that u conveyance TO purchaser avoids all
prior voluntary conveyances Of the same lands,
though, between two voluntary conveyances or
Two conveyanoes TO purchasers the first will take the
precedcacy. (Robcrts on Fraud. Cow, pp 80 64l.l
So in regard 10 double powers, power to soil or
powers, for they are necessarily exclusive OF all
ers may possibly be served out OF tho estate pro
sasiS exchange ~ hui Bu. when mere power to convey
once cxecvled in favor of voluntary beneficiary 1t
cannot be revoked without reservng power OF revo
sequent conveyance equaysvoluntary, made under he
same power Had the transactions IN question been
valuable consiaeration they would undoubtedly
have superseded tue voluntary appointment
"ssoS ss'r Of saI appse soauss sa the ne
subsequent appointment could displace this without
having expressly reserved power OF revocation, can
not be maintained, for as We have seen, sale does
have that elect There s no doubt therefore, that
the convcyanecs 10 Kimgsland and Martin were valid
and eeclual and the execution OF these conveyances
cannot be characterized In any manner fraudulent
They were conveyances which Nine Jumei, under her
original power OF ointment, had right to make,
otxcith ~ Ii
her adopted daughter
But the conve ances made 10 Hamilton aud Phillip
pom we're Of different character, ana seem TO have
been intended merely means Of restoring tho prop
erty It's original trusts, OF vesting II absolutely
Nine. Jumel herself, freed from the said appoint
neut 90 this point there be 10 dispute so lar
regards the deed to Pnillippor Ii mere formal
conveyance made enable him reconvey the prop
erty to Nine. JumeL A. sucn 1t was simply voiun-
previous appo favor OF Mary Jumel Bownes.
The conveyance to Hamilton may admit OF moro
doubt But looking at the whole lransaclon the con
veyance and the reconveyance We canuot avoid the
CONCLUSION that 1t was intended as means OF getting
OF the former appointment. TIE reconveyancc OF
Hamilton TO werckmeis,er was equivalent TO a
cancellation OF the pretended purchase, IL
not sale made by Hamilton TO Werck-
ior any purposes OF his own. Ii was SIMPLY hanang
back OF the properly. In our Judgment, therefore,
the Two conveyanccs amounted TO mere formal trans
Ter and retranser, and any SAFE was ever inenaed
rescnded by the mutual consent OF the parties to
IT, We are of opinion that this transaction did moi,
more Than That with InllilppOn aHcct
| mcnt question the estate OF the appointed,
whether that estate Is TO regarded as legal
equitable one.
MRS. CHASE WINS
Inc next question to the title OF tho appelleo5
10 equitable relief for protecting them the lilo
! which they have thus acquired. Nine. June died in
1860; and the appeiees immediately entered into III
possession OF all the property IN question both that
which derived from stephen Jumei and that which
is conceded TO have been tue proper estate OF Nine.
Jume, and they have boen IN possession ever since.
The appellant by his several actions OF eJcctment,
! regard TO the stephen Junel property the title
TO winch been considering, and which tho
appcees clai under ana by virtue Of the said trust
ana appointment, 1t IL apparent that II the estate
which they thus acquired ~ TO be regarded as sun AN
equitable estate their right 10 the protection OF court
oil equity Is undoubted matter where or IN whom
The legal estate may be; whether ia the heirs OF
Werckmcistcr. the trustee or IN the heirs OF Nine
Juine by OF the couveyances above referred TO-
On the other hand, II by virtue OF the RevIssu
statutes the equitable estate o the appeliees
womb sllll come INTO n