Waldron v. Chasteney. at the foot of the deed, and directly following the signature of R.: “I consent to the above," and subscribing his name thereto: Held, that the requirement of the proviso in the power of sale was thereby satisfied, and that the consent of B. imported his approbation. (Before NELSON and BETTS, JJ., Southern District of New York, November 16th, 1847.) EJECTMENT for premises in the city of New York. Medcef Eden, the younger, made his will in July, 1819, devising all his real and personal estate to Rachel his wife, for life, or durante viduitate, for the maintenance and support of herself, her daughters Sally Ann, (one of the plaintiffs,) Elizabeth, and Rebecca, and also of John Pelletreau; and, on the death or re-marriage of his wife, he devised said estates to Pelletreau, during his natural life, for the support of himself and the three daughters; and, after the death or re-marriage of his wife, and the death of Pelletreau, he devised all his said landed estates to Sally Ann, Elizabeth and Rebecca, in fee. The will then proceeded: "I give to my wife, so long as she shall remain single, and to the said John Pelletreau, after her death or marriage, full power and authority to sell and convey all or any part of my real estate, provided that the said Aaron Burr shall in writing, signed with his hand, approve and consent to such sale; but no such sale shall be valid without such approbation and consent." The moneys arising from such sale were directed to be invested in such manner as Burr should direct, for the purposes of the will. He appointed his wife executrix so long as she remained single and unmarried, and declared that, after she should die or be married, Pelletreau should be his executor. On the 1st of January, 1825, the testator having died, and his will having been duly proved, Rachel Eden executed a lease of the premises in question, which were a part of those devised by the will of her husband, to one Norsworthy. The lease purported to be executed by her as executrix and trustee, and set forth the will at large. The habendum clause of the lease was: "To have and to hold the premises, from the 1st day of January, 1825, for and during the full Waldron v. Chasteney. end and term of twenty-one years thence next ensuing, yielding and paying to the said Rachel Eden, her heirs and assigns, yearly and every year during the said term of twenty-one years, if she shall so long live and remain the widow of the said Medcef Eden, and, from and after her death or marriage, yielding and paying, for and during the residue of the said term which may be then unexpired, unto the said John Pelletreau, the yearly rent," &c. On the 29th of January, 1827, Rachel Eden sold and conveyed the same premises in fee to Halsey Rogers. The conveyance purported to be made by her as executrix and trustee under the will, and in pursuance of the power of sale contained therein. The approbation and consent of Burr to this sale was given by his writing, at the foot of the deed, and directly following the signature of Rachel: "I consent to the above," and subscribing his name thereto. Rachel Eden died in 1830, and Pelletreau in 1833. Elizabeth died in 1832, intestate and without issue. The plaintiff Waldron was the husband of the plaintiff Sally Ann. The plaintiff Wilson represented the interest of Rebecca. The defendant set up the lease to Norsworthy, and the deed to Halsey. At the trial a verdict was taken subject to the opinion of the Court, on a case to be made. Ambrose L. Jordan, for the plaintiffs. George Wood and Daniel Lord, for the defendant. BETTS, J. The points considered and decided by the Court are (1.) The due execution of the power under the will, in the conveyance of the premises in question in fee to Halsey Rogers, on the 29th of January, 1827; (2.) The sufficiency of the endorsement made by Col. Burr on the deed to Rogers, as a compliance with the directions of the will. (1.) We regard it as settled, by the Courts of this State, on the effect of the will of Medcef Eden, that Rachel Eden had only a naked power in respect to the disposition of the estate, Waldron v. Chasteney. and that the power could be rightfully exercised only by a sale of the estate in fee. (Waldron v. McComb, 1 Hill, 111; Me Comb v. Waldron, in error, 7 Hill, 335; Bloomer v. Waldron, 3 Hill, 361.) If the demise to Norsworthy, on the 1st of January, 1825, was intended as a conveyance under the power in the will, it would be void, as not fulfilling the declared intent of the testator, because not a sale of the estate for cash, or something which could be invested as its representative. (Bloomer v. Waldron, 3 Hill, 361.) But Rachel Eden, having an absolute estate for her widowhood, could lease that, independently of the power of sale; and, whether she demised it in gross by a description appropriate to her special interest, or conveyed it for a term of years which might outrun the duration of her interest, the demise would. be good for the interest she had, and only void for any surplus of the term unexpired at her decease. (Bacon's Ab. Leases, I. 2; 4 Com. Dig. Day's Ed. 63, note s; Sinclair v. Jackson, 8 Cowen, 543; Clarke's Lessee v. Courtney, 5 Peters, 319.) The lease purports to be executed by her, as executrix and trustee, but it also sets forth at large the will by which her personal interest is created, and the conveyance will, upon settled principles of law, be supported to the extent of her authority to make it as donee of the estate. (Sugden on Powers, 298.) She being tenant for life, unless she should re-marry, the demise was good for the amount of her interest, and she would never have been allowed to reclaim the premises from the lessee during her life, or before the expiration of the twenty-one years, on the allegation that she had no rightful power, as executrix and trustee, to execute a lease, even though it had been executed by her with a formal declaration that she acted solely under the power of sale in the will. But the lease, though inartificially drawn, in no way limits the grant to the power of sale. On the contrary, it indicates, with a distinctness that can leave no doubt, an intention to grant the interest of the lessor, as well as to exercise a supposed power to convey a term beyond that. There was clearly nothing in the power of sale in the will which author ized the limitations as to rent contained in the lease, and, as those limitations are in consonance with the actual interest of Rachel Eden and Pelletreau, the instrument would naturally be construed so that the grantee might be assured of all the interest the widow had in her own right, and so as to correspond with honest and fair dealing on her part. These considerations show that the lease, operating only to convey the vested interest of the lessor during her widowhood, created no impediment to the exercise of her power of sale; and that the sale in fee, on the 29th of January, 1827, to Rogers, became valid and effectual, if so executed in point of form as to give it operation under the will. It is contended that the outstanding term of years granted by the trustee to Norsworthy was injurious to the devisees, in preventing a sale for the full value of their interests, and also that the sale to Rogers was in fact for an inadequate consideration. Questions touching the discreet and beneficial exercise of the power of sale belong to a Court of Chancery, and not to one of law. The devisees might, by bill, have had relief against the trustee, if she executed her trust improvidently and to their prejudice, and against the purchaser, also, if he knowingly induced such act and colluded. with her in its commission. (Franchot v. Leach, 5 Cow. 506; Champion v. White, Id. 510; Jackson v. Hills, 8 Id. 290, 293; Taylor v. King, 6 Munf. 358.) But, upon its face, the conveyance to Rogers is valid, in so far as Mrs. Eden's capacity to execute it is concerned, and must so operate at law against the remainder-men, unless its execution was defective for want of compliance in form with the directions of the will. (2.) The power to sell is given by the will, with a proviso, "that Aaron Burr shall, in writing, signed with his hand, approve and consent to such sale, but no sale shall be valid without such approbation and consent." The argument for the defendant concedes, as broadly as the plaintiffs contend, that this power must be strictly pursued, so far as it is directory as to persons, time and mode of Waldron v. Chasteney. execution. It is needless to rehearse the authorities for this doctrine, which is fundamental on this point. There can be no question that the deed by the trustee was inoperative and void, unless Aaron Burr, in writing, signed with his hand, approved and consented to the sale. His consent and approbation in writing was made a vital part of the power. No form or method of conveyance could be devised omitting such consent, which would satisfy the special qualification of the power. No consent or approbation could be given by Col. Burr which would render the deed efficacious, except in the specific mode pointed out by the will. (Sugden on Powers, 264; Hawkins v. Kemp, 3 East, 410; Taylor v. Horde, 1 Burr. 60, 120; Daly v. James, 8 Wheat. 495; Clarke's Lessee v. Courtney, 5 Peters, 319, 349, 350; Sinclair v. Jackson, 8 Cow. 543.) It is, perhaps, not going too far to say, that the cases at law demand a precise and literal exercise of the power, to satisfy the rule. (Daly v. James, 8 Wheat. 495, 535; Hawkins v. Kemp, 3 East, 410; Sugden on Powers, 210, 212.) Whenever a particular form is prescribed, no other may be adopted as equivalent to it, and the only question here is, whether the will has declared the formula with which the consent and approbation of Col. Burr shall be expressed. The manner must be in writing, and the writing must be signed by him. Both of these particulars have been fulfilled in this case, and we think that these are the only directions in the will which need be literally and exactly complied. with. The conveyance is perfect in all its formalities when so framed, and, if the writing, so signed, expresses the consent and approbation of Col. Burr to the sale, there is no limitation to the use of those precise words in order to convey the consent. The will manifestly shows that the testator intended to secure the concurrence of Col. Burr to the conveyance and the investment of the proceeds, and it defines the manner in which his concurrence shall be communicated. This, however, does not necessarily import that the consent and approbation itself-the assent of Col. Burr's mind-must |