By the Court, Strong, P. J.
The bill states that Hannah Ryerson executed the trust deed to Robert Campbell, in contemplation of her marriage with the defendant, Ezra W. Miller. This is not denied, nor in any manner put in issue, by the answer. So far as relates to the claims of the plaintiffs in this suit, that fact is admitted, and so long as the pleadings remain in their present state, cannot be controverted by them. Miller says in his further answer that he knew nothing of the making or existence of the deed at the time when it was executed, nor until after his marriage. This averment having been called for by the exceptions taken to the first answer, and being verified according to the requisition of the bill by his oath, is evidence in his favor, and must prevail, unless satisfactorily rebutted by the testimony adduced in the case. It is proved that the existence of the deed, and the management and control of the estate by Campbell, were known to many others in the neighborhood where Hannah Ryerson resided, and that Miller asked the permission of the trustee to pay his addresses to her. This is all the evidence to show Miller’s knowledge of the deed, before his marriage, and it is not, in my opinion, sufficient for that purpose. What others knew was not even competent [608]*608evidence against him, and if admissible, would raise but a slight inference that he was acquainted with the same facts. The trustee had been her guardian, from the death of her father, and the application to him would seem to evince an impression on the part of Miller that she was still a minor and in some degree under the control of her guardian, and not that she had attained her full age, and had the legal capacity to execute a deed. The weight of evidence is that Miller knew nothing about the deed at the time of his marriage. If, as the bill states, the deed was executed in contemplation of the marriage, and as the answer proves he knew nothing about it until after the marriage had been consummated, it was in fraud of his marital rights, and he could have avoided it had he chosen to do so. But it was valid or void at his election. He did not choose to make any attempt to set it aside, but on the contrary his subsequent conduct evinced an acquiescence by him in the validity of the instrument, and he makes no resistance to its original efficacy, in his answer: consequently he cannot avail himself of the objection- now. The only bearing which those facts can have in this controversy is upon the question of actual fraud in Miller. If he had been deceived as to Mrs. Miller’s possession and control of her property, and his rights had been wrongfully invaded, he might have very honestly assented to, and even proposed, the practical revocation of the trust, and the transfer of the property to him. Particularly if he contemplated at the time, as I think he did, to make a suitable provision for his wife out of the property, and to make some eventual provision for her children. It does not appear that the plan to change the title of the property from the trustee to Miller originated with him. Campbell the trustee testified that he first talked about getting rid of the trust, and that it was probable the proposition first came from him. Miller of course readily assented to it. They consulted with Mr. Richard Harison, (who was counsel for the trustee,) and Mr. Peter J. Munro, as to the best method to accomplish their object. They also consulted the executors of the will under which Mrs. Miller derived her title to the property, This was before taking any steps to
[609]*609effectuate a change of the title. It is evident that neither the deed to Westervelt nor DeGarmo had then been executed. Campbell swears that the sales to them resulted from a plan adopted by counsel for getting a decree in chancery. And yet the vice chancellor supposes that the able and honorable counsel who conducted the whole transaction, knew pothing originally about the object or consideration of those deeds. I have looked in vain over the evidence to find any thing to warrant the supposition. Miller, whose bona Jides in the transaction was assailed by the bill, swears that the deeds to Westervelt and DeGarmo were made under the advice of Mr. Harrison and Mr. Munro, with the intent to release the prepiises thereby conveyed from the effect and operation of the trust deed, and that they advised him that it might be fairly and honestly done. So far as it relates to Mrs. Miller, it does not appear that she made the slightest opposition to the arrangement, nor that she acted under the duress or undue influence of her husband. It no where appears that she was ordinarily at all under his control, but unfortunately there is every reason to infer quite the contrary. Neither did she, until after the institution of this suit, make any attempt to set aside the deeds, or the consequent transfer of the property to Miller, although she had been divorced from him for many years. There can be no doubt but that she was induced to execute and acknowledge the deeds by an understanding at least that the annuity of $600 was to be secured to her during life, and a belief that the whole transaction was fair and right.
The vice chancellor strongly condemns Miller’s conduct in the two suits instituted by Westervelt and De Garmo in the court of chancery. If a wrong statement was submitted to that court either in the pleadings or proofs, that (although I am apprehensive that it is of frequent occurrence) cannot bp jpstified. But I cannot suppose that such eminent counsel as Mr, Harison and Mr. Munro would be the active, or even the passive instruments of fraud or deception, nor do I believe (hat it was the habit of the great man who presided in the court of chancery at the time when the transactions took place, to let ’ [610]*610matters pass in judgment before him, even by consent, without a thorough examination. My impressions are that he must have inspected the trust deed, and known the object for which the deeds to Wester veil and De Garmo had been executed and the suits thereupon instituted, and that he must have concurred with the counsel in believing that the transaction was honest and fair. Certainly, if he supposed that the children of Mrs. Miller had no legal or equitable interest, in the property, and that the only person beneficially interested had assented to the proceeding, he was justified in coming to that conclusion. So far as it related to the rights of the children of Samuel E. Ryersou, they were parties to the suit, and appeared by their father as their guardian, Surely he would not have assented to the perpetration of a fraud, under the forms of the law, by which his children might be deprived of even a remote chance of obtaining a valuable property.
As Mrs. Miller had full power to convey her equitable estate in the premises to third persons, for the purpose of having it eventually transferred to her husband, as she executed conveyances of such estate without coercion or imposition, and acknowledged such execution in the manner required by the statute, and as she was subsequently a voluntary and acting party in suits in which those conveyances were established, she was bound by those transactions, and all her estate legal or equitable in the premises described in the two deeds has passed to the defendant Miller. There is nothing except the testimony of Campbell as to his first intention, to show that Miller took the estate designedly as trustee. Nor did Mrs, Miller have any such impression, as is evident from her subsequently taking a mortgage on a part of the same property, to secure the payment of her annuity.
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By the Court, Strong, P. J.
The bill states that Hannah Ryerson executed the trust deed to Robert Campbell, in contemplation of her marriage with the defendant, Ezra W. Miller. This is not denied, nor in any manner put in issue, by the answer. So far as relates to the claims of the plaintiffs in this suit, that fact is admitted, and so long as the pleadings remain in their present state, cannot be controverted by them. Miller says in his further answer that he knew nothing of the making or existence of the deed at the time when it was executed, nor until after his marriage. This averment having been called for by the exceptions taken to the first answer, and being verified according to the requisition of the bill by his oath, is evidence in his favor, and must prevail, unless satisfactorily rebutted by the testimony adduced in the case. It is proved that the existence of the deed, and the management and control of the estate by Campbell, were known to many others in the neighborhood where Hannah Ryerson resided, and that Miller asked the permission of the trustee to pay his addresses to her. This is all the evidence to show Miller’s knowledge of the deed, before his marriage, and it is not, in my opinion, sufficient for that purpose. What others knew was not even competent [608]*608evidence against him, and if admissible, would raise but a slight inference that he was acquainted with the same facts. The trustee had been her guardian, from the death of her father, and the application to him would seem to evince an impression on the part of Miller that she was still a minor and in some degree under the control of her guardian, and not that she had attained her full age, and had the legal capacity to execute a deed. The weight of evidence is that Miller knew nothing about the deed at the time of his marriage. If, as the bill states, the deed was executed in contemplation of the marriage, and as the answer proves he knew nothing about it until after the marriage had been consummated, it was in fraud of his marital rights, and he could have avoided it had he chosen to do so. But it was valid or void at his election. He did not choose to make any attempt to set it aside, but on the contrary his subsequent conduct evinced an acquiescence by him in the validity of the instrument, and he makes no resistance to its original efficacy, in his answer: consequently he cannot avail himself of the objection- now. The only bearing which those facts can have in this controversy is upon the question of actual fraud in Miller. If he had been deceived as to Mrs. Miller’s possession and control of her property, and his rights had been wrongfully invaded, he might have very honestly assented to, and even proposed, the practical revocation of the trust, and the transfer of the property to him. Particularly if he contemplated at the time, as I think he did, to make a suitable provision for his wife out of the property, and to make some eventual provision for her children. It does not appear that the plan to change the title of the property from the trustee to Miller originated with him. Campbell the trustee testified that he first talked about getting rid of the trust, and that it was probable the proposition first came from him. Miller of course readily assented to it. They consulted with Mr. Richard Harison, (who was counsel for the trustee,) and Mr. Peter J. Munro, as to the best method to accomplish their object. They also consulted the executors of the will under which Mrs. Miller derived her title to the property, This was before taking any steps to
[609]*609effectuate a change of the title. It is evident that neither the deed to Westervelt nor DeGarmo had then been executed. Campbell swears that the sales to them resulted from a plan adopted by counsel for getting a decree in chancery. And yet the vice chancellor supposes that the able and honorable counsel who conducted the whole transaction, knew pothing originally about the object or consideration of those deeds. I have looked in vain over the evidence to find any thing to warrant the supposition. Miller, whose bona Jides in the transaction was assailed by the bill, swears that the deeds to Westervelt and DeGarmo were made under the advice of Mr. Harrison and Mr. Munro, with the intent to release the prepiises thereby conveyed from the effect and operation of the trust deed, and that they advised him that it might be fairly and honestly done. So far as it relates to Mrs. Miller, it does not appear that she made the slightest opposition to the arrangement, nor that she acted under the duress or undue influence of her husband. It no where appears that she was ordinarily at all under his control, but unfortunately there is every reason to infer quite the contrary. Neither did she, until after the institution of this suit, make any attempt to set aside the deeds, or the consequent transfer of the property to Miller, although she had been divorced from him for many years. There can be no doubt but that she was induced to execute and acknowledge the deeds by an understanding at least that the annuity of $600 was to be secured to her during life, and a belief that the whole transaction was fair and right.
The vice chancellor strongly condemns Miller’s conduct in the two suits instituted by Westervelt and De Garmo in the court of chancery. If a wrong statement was submitted to that court either in the pleadings or proofs, that (although I am apprehensive that it is of frequent occurrence) cannot bp jpstified. But I cannot suppose that such eminent counsel as Mr, Harison and Mr. Munro would be the active, or even the passive instruments of fraud or deception, nor do I believe (hat it was the habit of the great man who presided in the court of chancery at the time when the transactions took place, to let ’ [610]*610matters pass in judgment before him, even by consent, without a thorough examination. My impressions are that he must have inspected the trust deed, and known the object for which the deeds to Wester veil and De Garmo had been executed and the suits thereupon instituted, and that he must have concurred with the counsel in believing that the transaction was honest and fair. Certainly, if he supposed that the children of Mrs. Miller had no legal or equitable interest, in the property, and that the only person beneficially interested had assented to the proceeding, he was justified in coming to that conclusion. So far as it related to the rights of the children of Samuel E. Ryersou, they were parties to the suit, and appeared by their father as their guardian, Surely he would not have assented to the perpetration of a fraud, under the forms of the law, by which his children might be deprived of even a remote chance of obtaining a valuable property.
As Mrs. Miller had full power to convey her equitable estate in the premises to third persons, for the purpose of having it eventually transferred to her husband, as she executed conveyances of such estate without coercion or imposition, and acknowledged such execution in the manner required by the statute, and as she was subsequently a voluntary and acting party in suits in which those conveyances were established, she was bound by those transactions, and all her estate legal or equitable in the premises described in the two deeds has passed to the defendant Miller. There is nothing except the testimony of Campbell as to his first intention, to show that Miller took the estate designedly as trustee. Nor did Mrs, Miller have any such impression, as is evident from her subsequently taking a mortgage on a part of the same property, to secure the payment of her annuity. That would have been unnecessary, and indeed absurd, if Miller held the property as her trustee, for her separate use. The trust deed provided expressly that when the property should be sold or disposed of, the grantee should hold and enjoy it free from all the trusts therein specified. And the two suits in chancery were instituted for the purpose of discharging the property from such trusts before it was conveyed [611]*611to Miller. Miller has, in effect, given a valuable if not a full consideration for these lands as they were conveyed and assigned to him. He amply secured to his wife an annuity of six hundred dollars during he/ life, and conveyed in trust for her children property valued at 12,900 dollars to be held by them in fee after his decease. I was strongly impressed with the remark made by my brother Barculo, during the argument, that the children would fare better by this arrangement than by that proposed in the original trust deed, even if the provision designed for their benefit in that deed had been unquestionably valid.
But the two suits brought by Westervelt and DeGarmo were not conclusive upon the present plaintiffs. They were then infants, and there was no provision in the decree allowing them a day to show cause after they came of age. The cases cited by the vice chancellor are conclusive on this point. If therefore, they have any valid interest by way of remainder or otherwise, in the property in question, they are entitled to the protection of this court.
The circumstances of this case render it necessary to consider and determine what interests were retained, if I may use the expression, for Mrs. Miller, or granted to her children by the trust deed; and those are the questions on which the decision of this case must turn.
The trust deed is not very perspicuous. It was evidently drawn by some one better acquainted with the phraseology of legal instruments than with their import. In such cases the intentions of the parties, if they can be ascertained, essentially aid in the construction of the conveyance. Sometimes such intentions are indicated by the language used ; but frequently they must be inferred, if at all, from the circumstances. The deed in this case was executed by a young woman, probably soon expecting to be married, and evidently designing that her property should be at her own disposal, free from the control of any one, and especially of her husband. Her primary object was to secure and protect her own interests. The interests of her children, if she should have any, were but secondary con[612]*612siderations. She had none at the time, and when she had she seems to have felt but little regard for them. It is stated in the bill, and is probably the fact, that they are not even personally known to her, and that seems to have been attributable to her, as she was not prohibited from seeing them. She probably desired that if she should leave any property, it should be enjoyed by them in preference to others. There is no evidence that she felt any disposition to make any sacrifice, or to place herself under any restrictions for their benefit. Neither is there any thing to show that while she wished to exempt her property from the control of her husband, she was at all solicitous to place it under the control, or to subject her enjoyment of it to the absolute directions, of another. She states in her deed that she was desirous to make provision for a suitable and permanent support and maintenance out of her property for herself, during her natural life, free from the control of any other person or persons, and to secure the residue to such children and heirs as she might have, and if she should not have issue, to the children of her brother, Samuel E. Ryerson. Surely with this disposition, she would not, while endeavoring to avoid the control of any person, have intentionally placed herself under the entire direction of some one in the matter of her personal expenses, concerning which ladies are sometimes, if not generally, very tenacious of their rights and power. She intended to devote sufficient to satisfy her own wants to her own use, not only out of the income of the fund, but also out of the principal, for she makes no distinction, and that her children, or the children of her brother, should have the residue if she should leave any. She designed to prevent any one, and especially her husband, from preventing her absolute enjoyment of her property during her life, or the destination of such of it as she might leave for the benefit of her children, or the children of her brother, after her decease. Accordingly a power is given to the trustee to sell the whole of the property. She authorizes him to “ absolutely sell and dispose of, or to lease, all and singular, or any part” of the property, and “to make conveyances of all, or any part or parts ” of her said estate; and she [613]*613stipulates to join in the execution of deeds for the “ whole or any part or parcel thereof.” There is no restriction of the power to sell, either as to quantity or purposes. The trustee could sell the whole of it, should it become necessary or advisable. It is not stated who is to be the judge, as to the quantity which it would be advisable to sell, nor is it necessary to decide that question as to the property which was actually sold, as both the trustee and cestui que trust joined in the sale. Then as to the avails of the property which was to be sold, the trustee was authorized to pay out various sums for purposes particularly specified, and he is then directed to “ forthwith from time to time, pay over the residue thereof, (the purchase moneys and rents,) for and towards the reasonable support and maintenance of Mrs. Miller, as she may require the same, upon her own separate receipt only, and for her own use, free from the control of any husband during her natural life.” Here again there is no restriction as to the quantity ; true, it is to be for her reasonable support and maintenance, but that can be of no particular importance, as she has the absolute power of making the requisition. That she might take the whole is evident from the direction which immediately follows, that “ the residue, if any there should be, after the deductions and payments required, should be put out at interest. The direction for the benefit of her children is, that the trustee shall apply the residue of the moneys, rents and proceeds, arising by the sale or sales, lease or leases, occasionally for and towards the bringing up, education and support of such child or children as the cestui que trust might have, in a just and ratable proportion, as might be required, during the life of such child or children. This direction shows what Mrs. Miller intended to give to her children, provided she should not require it for her own use; not certainly any disposition to deprive herself of the power of balling for the whole. The terms of the deed, although the language is somewhat indefinite, are I think sufficient to indicate her intentions, and to clothe her with the requisite power to carry them into effect.
The absolute power of disposal of the property in the cestui [614]*614que trust, for her own benefit, conferred upon her the equitable fee simple, absolute and unqualified, and rendered the intended limitation over for the benefit of her children, qualified as it was, null and void. The authorities to that effect are conclusive. (The Attorney General v. Hall, Fitzgib. 314. 1 Ves. sen. 9. Ide v. Ide, 5 Tyng, 500. Jackson v. Bull, 10 John. 19. Livingston v. Delancey, 13 Id. 537. Jackson v. Robbins, 15 Id. 169. The same case in error, 16 Id. 397.)
The plaintiffs had therefore no valid interests to protect, and their bill cannot be sustained. In my opinion, the decree of the vice chancellor should be reversed, and the bill should be dismissed.
As the controversy has been caused by the doubtful, and to some extent, conflicting provisions of the trust deed, I think that the plaintiffs were justifiable in coming into a court of equity to obtain a judicial construction of that instrument, and that they should not be subjected to the payment of costs.
Decree appealed from, reversed.