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sufficient reference to the power to make the instrument operate as an execution of it, inasmuch as the words of the instrument could not otherwise be satisfied.” 2 Sugd. Powers, (7th London Ed.) c. 6, § 8, p. 412.
In the present case, as we have seen, the legal effect and meaning of the instrument cannot be satisfied without treating it as an execution of the powers under the will, for Cyrenius Beers, merely as debtor, as mortgagor, and as owner of the life estate under the will of his wife, could not lawfully agree to keep in force and renew & mortgage upon the estate of which the appellants were devisees in remainder in fee.
The supreme court of Illinois in the case of Funk v. Eggleston, 92 Ill. 515, bad the question under consideration, and in a learned opinion, in which a large number of authorities, both English and Amer. ican, is reviewed, discarded even the modified English rule of later date, and adopted that formulated by Mr. Justice Story in Blagge v. Miles, 1 Story, 427, as follows:
“The main point is to arrive at the intention and object of the donee o: the power in the instrument of execution, and, that being once ascertained, effect is given to it accordingly. If the donee of the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute the power must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it should appear by words, acts, or deeds demonstrating the intention.”
The rule as adopted by this court was tersely stated by Mr.*Justice STRONG in delivering its opinion in Blake v. Hawkins, 98 U. S. 315, 326, in this form:
“ If the will contains no expressed intent to exert the power, yet if it may reasonably be gathered from the gifts and directions made that their purpose and object were to execute it, the will must be regarded as an execution. After all, an appointment under a power is an intent to appoint carried out, and if made by will the intent and its execution are to be sought for through the whole instrument."
In the case of Munson v. Berdan, 35 N. J. Eq. 376, it is said:
" It is sufficient if the act shows that the donee had in view the subject of the power.”
And in White v. Hicks, 33 N. Y. 383, 392, DENIO, C. J., said:
“ This doctrine proceeds upon the argument that by doing a thing which, independently of the power, would be nugatory, she (the donee of the power) conclusively evinced her intention to execute the power.”
And in Sewall v. Wilmer, 132 Mass. 131, 134, the supreme judicial court of Massachusetts, in reference to a will made in Maryland, which was the domicile of the testatrix, but the provisions of which related to both real and personal estate situated in Massachusetts, held it to be a valid execution of a power contained in the will of her father, whose domicile was in that state, although it would have been otherwise held in Maryland. GRAY, C. J., said:
“But in this commonwealth the decisions in England since our revolution, and before the St. of 7 Wm. IV. and 1 Vict. c. 26, § 27, have not been followed; the court has leaned towards the adoption of the rule enacted by that statute as to wills thereafter made in England, namely, that a general devise or bequest should be construed to include any real or personal estate of which the testator has a general power of appointment, unless a contrary intention should appear by his will; and it has been adjudged that the mere facts that the will relied on as an execution of the power does not refer to the power, por designate the property subject to it, and that the donee of the power has Ouher property of his own upon which his will may operate, are not conclusive against the validity of the execution of the power; but that the question is in every case a question of the intention of the donee of the power, taking into consideration not only the terms of his will, but the circumstances surrounding him at the time of its execution, such as the source of the power, the terms of the instrument creating it, and the extent of his present or past interest in the property subject to it."
We cannot doubt that Cyrenius Beers, in the agreement of February 24, 1874, intended to exert whatever power had been conferred upon him by the will of his wife to continue in force the mortgage to the appellee as an incumbrance upon her estate, for the reason that it is upon that supposition alone that it can have its due legal effect, ut res magis valeat quam pereat; and, by force of the rules which we have seen ought to govern in such cases, we hold that if the agreement as made is within the scope of the power, it must be regarded as a valid execution of it.
The question next to be considered, therefore, is whether Cyrenius Beers was empowered by the will of his wife to consent to an extension of the time of payment of the mortgage debt, and a continuance thereby of the lien on the mortgaged estate. It is to be observed, in the first place, that he is made executor of the will, tenant for life for his own use of all the property of the testatrix, and trustee of the legal title. Whether his title as trustee is to be considered as a fee-simple or for life, or a chattel interest only, it is not necessary to decide. Its duration is to be measured by the nature of the purposes for which it was created, and they include the power to mortgage, to sell, and to reinvest in his own name as trustee. And it is not without significance, although of how much importance is not material, that the remainder in fee limited to the children of the testatrix, and which is described as a limitation of all the*estate of which the testatrix should die seized or possessed, is subsequently referred to as what shall remain after the death of the tenant for life, and after the exercise by him of the power of mortgaging or selling and reinvesting has been exercised for the purpose of paying the indebtedness upon the property. It is further to be noticed that the powers to mortgage and to sell are authorized to be exercised by him for the purpose specified, “as though pos
he held an absolute estate in said property.” The specific power given is to “incumber the same by way of mortgage or trust deed or otherwise, and renew the same, for the purpose of raising money to pay off any and all incumbrances now on said property," and the additional power to "sell and dispose of any or all the real estate of which I may die seized or possessed, as though he held an absolute estate to the same, and out of the proceeds pay any of the incumbrances upon any of the property of which I may die seized and sessed,” and “the remainder over and above what may be required to pay the indebtedness upon said property, the same now being incumbered, to reinvest in such way as he may see proper, and from time to time sell and reinvest, such reinvestment to continue to be held in trust the same as the estate of which I may die possessed."
It is too plain to admit of dispute, that under these ample powers Cyrenius Beers might have secured, by a new mortgage, a loan of the sum of money, at the stipulated rate of interest, necessary to pay his indebtedness to the appellee, and that he might by a new loan from the appellee itself, secured by a new mortgage, upon the same terms and for the same time as granted by the agreement of extension, have raised the money and discharged the mortgage now in suit. Such a transaction would have been strictly within the letter of the authority. And yet it would, in fact, have been nothing but what was accomplished by the agreement of extension, namely, a continuance of the old loan, secured by the old mortgage for a new term, and at a higher rate of interest. The two transactions, though not the same in form, are so in substance, and a substantial execution of the power is all that is required. In the case of Bullock v. Fladgate, 1 Ves. & B. 471, where the power was to convert an estate into money and to purchase other lands, which were the subject of the appointment, the master of the rolls, Sir WILLIAM GRANT, no conversion having taken place, but the original estate having been appointed, said:
“I apprehend that equity will uphold an appointment of the estate itself as amounting substantially to the same thing; on which principle it is that appointments deviating considerably from the letter of the powers under which they were made, have frequently been supported."
The power to incumber the estate "by way of mortgage or trust deed or otherwise, and renew the same,” is broad enough to include the renewal and extension of an existing incumbrance as well as the creation of a new one; and this is not inconsistent with the declaration that it is to be "for the purpose of raising money to pay off any and all incumbrances now on said property." The object clearly was to meet the demand of the existing mortgagee for punctual payment of the debt secured, and to prevent the possible sacrifice of a forced sale to satisfy the demand, if not complied with; an object which could as well be accomplished by extending the existing mort. gage, as by substituting a new one in its place. The power to renew a mortgage given for the purpose of raising money to pay off an existing incumbrance is expressly given; to renew an existing one, to avoid the necessity of creating a new incumbrance, is, we think, reasonably and fairly to be implied, as equally within the intention of the testatrix, and within the scope of the powers created by the will. The extension of a mortgage debt, and continuance of a mortgage lien, is one mode of incumbering the property, and may be a step, and possibly, under some circumstances, a very important and necessary one, in preparing for its payment and extinguishment. Indeed, it might well be, as the transaction shows the parties to it so understood, that Cyrenius Beers, uniting in himself the various char. acters of principal debtor and joint mortgagor, and of executor of his
wife's will, tenant for life of the estate devised, and trustee with the Fample powers conferred upon him of dealing with the incumbrance,
was, in reality,* constituted by the testatrix as the representative of all the interests created by the will, fully authorized, as if he were absolute owner of the estate, even as she could have done in her life. time, to consent to the extension of the time of payment of the mort. gage debt without prejudice to the mortgage security.
There is no error in the record, and the decree of the circuit court is affirmed.
(109 U. S. 385) MILLER V. MAYOR, ETC., OF THE CITY OF NEW YORK and others.
(November 26, 1883.)
BROOKLYN BRIDGE-East River-NAVIGABLE WATERS-Power OF CONGRESS
ACT OF CONGRESS-AGENT TO APPROVE-DECISION
FINAL-NOTICE BY AGENT.
Brooklyn bridge is not a public nuisance.
connected with the freedom of navigation; and a bridge erected by authority of congress, over a navigable channel, cannot be complained of as a public nuisance, by a person suffering damage or inconvenience therefrom in com
mon with the rest of the public. l'he decision of a person appointed by act of congress to determine whether the
provisions of the same act, authorizing a certain public work to be built in a particular way, have been complied with, cannot be called in question by a
stranger. A notice given by the chief engineer, in pursuance of an order from the secretary
of war, is sufficient notice under an act of congress requiring the secretary of war to give notice.
Appeal from the Circuit Court of the United States for the Southern District of New York.
1 See S. C. 10 Fed. Rep. 513.
Wm. H. Arnoux, for appellant. Jos. H. Choate, for appellee. * FIELD, J. This suit was commenced in May, 1876, to restrain the erection of the suspension bridge then under construction over East river, in the state of New York, between the cities of New York and Brooklyn, at the height of 135 feet above the river at high-water mark, which was the proposed elevation of the structure. As the bridge has since been completed, if the plaintiff can make good his contention, and establish that when he filed his bill he was entitled to the relief prayed, he may claim that the bridge shall be raised to a greater elevation, or be entirely abated. He is the lessee of cer. tain warehouses on the banks of the river above the point of the proposed crossing of the bridge, and he states that he brings the suit on behalf of himself and of all others similarly situated. No one, however, has united with him in its prosecution. He stands alone as complainant, and alleges that the bridge, if erected as projected and intended to the height designated, would be built without lawful power and authority; that it would be a nuisance, and obstruct, impair, and injuriously modify the navigation of the river, and might seriously and prejudicially affect the commerce of the port of New York; that merchant vessels from the New England states and British provinces, and from ports south of New York, and vessels en. gaged in foreign commerce, pass and repass on the river the intended location of the bridge; that the masts of a large proportion of these vessels exceed 135 feet in height; and that the expense to them of striking parts of their masts in passing under the bridge if built as proposed, with the detention and additional towage rendered necessary, would be so great as to destroy his warehouse business and be a private and irreparable injury to him, for which an action at law would afford no adequate redress. He accordingly prays an adjudi. cation of the court upon the character and effect of the proposed bridge in conformity with these allegations, and an injunction restraining the further prosecution of the work of building it at the height of 135 feet above mean high-water, or at any other height that would obstruct, impair, or injuriously modify the navigation of the river.
The court below did not find in the allegations of a possible*loss to the plaintiff in bis warehouse business, or in the proofs offered to sustain them, sufficient ground to restrain the completion of the work. It dismissed his complaint as being without substantial merit. We approve of its action and decree. The erection of the bridge at the elevation proposed was authorized by the action of both the state and federal governments. It would, therefore, when completed, be a lawful structure. If, as now completed, it obstructs, in any respect, the navigation of the river, it does so merely to an extent permitted by the only authorities which could act upon the subject. And the in. jury then apprehended, and alleged by the plaintiff and now 8118