McWhorter vs. Agnew, 6 Paige Ch. 111

The Chancellor. As this was an executed and not a mere executory trust, and as the limitations were both limitations of equitable estates or interests of the same nature, the rule in Shelly’s case applied to the equitable estate conveyed by this deed of settlement; for equity follows the law in such a case.

The limitation of the equitable use to the complainant for life, with a general power of appointment of the inheritance by will, notwithstanding her coverture, united itself with the equitable use in the remainder to her heirs in default of such appointment; so as to vest the whole beneficial interest in the inheritance, as well as in the life estate in the complainant, as her separate estate, in fee simple, free from the control of her husband, and divested of any equitable claim on his part to an estate by the curtesy therein. (See Jickling’s Leg. and Eq.

Estates, 286.) Upon the death of her husband, therefore, the whole beneficial interest in the trust estate was in her, and subject to her absolute control and disposition, with the assent of the trustee who held the legal estate for her sole use and benefit. The subsequent conveyance to her by the surviving trustee again united the legal and equitable estates which had been separated by the deed of settlement.

This, therefore, enables her to give a clear and perfect title in fee to purchasers of the estate, unless the power to appoint the inheritance, which was reserved to her in the original deed of settlement, is one which cannot be released or extinguished in equity, although it is merged at law. This power to appoint the inheritance by will notwithstanding the coverture of the complainant, was clearly a power appendant or appurtenant to her .equitable interest in the trust property.

And as the power of appointment was general, so that no other person or class of persons .could have any beneficial interest in the execution of the power, there was no good reason why the complainant, after the death of her husband, should not be permitted to extinguish the power, and to reinvest herself with the legal title and the absolute control of the property, as she held the same previous to the deed of settlement. And if the power is gone at law, equity will not revive it, or again separate it from the legal estate so as to defeat the title of her grantees.

During the existence of her coverture there might be good reasons for endeavoring, if possible, to place the inheritance as well as the life estate beyond her control, unless with the consent of her trustees, except by means of a will which might be revoked by her at any time during her life.

And without such a provision as is contained in the deed of trust, depriving her of the power of defeating the settlement which had been made for her sole benefit, the influence of the husband over his wife might have been such as to have induced her to unite with him in an application to this court to change the nature of the trust, or to have a reconveyance of the legal estate to her, so as to put it within the control of her husband without the assent of the trustees.

During the coverture of the wife and while the legal estate remained in the trustees, the only way in which the property could have been conveyed, so as to extinguish the power and give a good title to the purchaser, was by a conveyance in which the trustees should join with the husband and wife; as she could not otherwise dispose of the inheritance independently of the power, which power could only be executed by a revocable will.

But upon the death of her husband and the reconveyance to her of the legal estate, her right to dispose of her absolute interest in the property in fee resulted from her absolute ownership; in other words, the exercise of the right is no longer dependant upon the mere power reserved to her in the deed of settlement.

Even if the power itself were not merged in the legal estate, a purchaser from her would now obtain a perfect title under any of the ordinary forms of conveyance ; as she could not afterwards defeat her grant by an exercise of the power of appointment. (See Sugden on Powers, 5th Lond, ed, 61.) Again ; the object of the deed of settlement in this case was not to deprive the complainant of the control of her property in case of the death of her husband during herlife, but merely to preserve the same for her use, and to enable her to dispose of it by will if she should die during her coverture.

The whole object of the trust was therefore at an end by the death of her husband ; and the object of the trust having ceased to exist, she was entitled in equity to a re-conveyance of the legal estate from the trustee. And upon such conveyance the power to appoint the inheritance by will was merged in the legal estate, both at law and in equity. The complainant is, therefore, entitled to a specific performance of the contract for the sale of the two lots in question, and her deed to the purchaser will give to him a perfect title to the premises.