Mary J. Tucker et al., Respondents, v. John Meeks et al., Appellants

Mary J. Tucker et al., Respondents, v. John Meeks et al., Appellants. (Argued February 11, 1873; decided February 18, 1873.) This action was brought by the heirs of Sophia L. Davis to recover possession of lot 63 Barclay street, in the city of New York, held under a lease from Columbia College. Defendants claimed under a conveyance from said Sophia of the unexpired term. Plaintiffs claimed that said Sophia had only a life interest, and that upon her death they became entitled to the unexpired term. The question depended upon the construction to be given to a trust deed executed by Joseph De la Croix, father of said Sophia, to Thomas Edward Tucker. The deed recited that “ whereas the said Joseph De la Croix has, on account of the destitute situation of.his daughter, Sophia, the wife of Morgan Davis, concluded to settle, for her sole and separate use, the estate and property hereinafter mentioned, to enable her to support herself, and to educate and bring up her infant children for and during the natural life of the said Sophia, and immediately after her death the then remaining estate and property to the use of her children, in equal parts, the issue of those deceased to receive a parent’s portion, which said estate and property the said Joseph deems of about the' same amount in value as that which he intends by his will to devise tó his other children.” He, therefore, in consideration of natural love and affection, conveyed all his right and interest under the lease in question, with other leases, and also all his estate and interest in and to a certain saw-mill and premises situate in Westchester county to said “ Thomas Edward Tucker, his executors, administrators and assigns * * * in trust to sell, and in due form of law to convey the said right, title and interest in the said saw-mills, with all the appurtenances situate in the said county of Westchester, to such person and for such consideration as the said Sophia shall by writing direct and appoint, and to pay the proceeds thereof to her the said Sophia, upon her.own receipt, as if she was sole; and, in trust further, that the said Thomas Edward Tucker, from time to time, let, set and demise, all and singular the rest, residue and remainder of the said assigned premises to such persons and for such rent as said Sophia may approve, and to pay the rent or proceeds thereof to the said Sophia, from time to time, as the same may be received, upon her own receipt, as if she were sole, for and during her natural life; and, in trust further, to suffer and permit the said Sophia to use, occupy and enjoy such part of the said assigned property as she may require and see fit during her natural life; and, in trust, ■further to make, seal and delimer all or any deed or deeds of conveyance or partition for the sand assigned premises that the sand Sophia, ma/y, in writing, direct or appoint; and, in trust, further to surrender all or any of the old leases for said assigned premises, or for any part thereof, and, accept and make new leases therefor in such manner and upon such terms as the said Sophia shall or may direct or appoint, so, however, that such partition and new leases shall follow the trusts herein and hereby declared; and, in trust further, that the said Thomas Edward Tucker, his executors or administrators, shall, upon the request of the said Sophia, grant, bargain, assign, transfer and set over all and singular the said herein and hereby assigned premises, with all the appurtenances, unto such person or persons as the said Sophia shall or, may by any writing, under her hand and seal, duly acknowledged before a commissioner of deeds, direct and appoint, so, however, that the trust in favor of the said Sophia’s children and their interest in the remainder be preserved; * * * and, in trust further, immediately upon the death of the said Sophia, that the said Thomas Edward Tucker, or whomsoever to whom the said trust estate in Barclay street * * * may have been assigned, shall, in due form of law, convey all and singular the said trust estate * * * to the children of the said Sophia in equal parts, the lawful issue of those deceased to take a parent’s portion; it being the intention of these presents that the said Sophia take and receive the interest or income of those estates during her life, for her sole and separate use, and that the principal thereof remaining after her death go and belong to her said children as aforesaid, and for no other use or purpose whatsoever.” 'The right in said Sophia to convey was claimed by defendants to have been given by the clause italicized. Held, that the tenor and purpose of the deed, considered .as a whole, was to give but an interest for life in the leasehold estates to the grantor’s daughter Sophia;, and to give the term which was unexpired at her death to the children, unchanged by sale; and that plaintiff, therefore, was entitled to recover. Dexter A. Hawkins for the appellants. George Bliss, Jr., for the respondent. [MAJORITY — Folgeb, J.,] Folgeb, J., reads for affirmance. All concur, except Allen, J., not voting.