The opinion
Gray, J.
(dissenting). I must dissent from the conclusion reached in this case by my brother Landon. The deed of 1827'from Talhnan to Cornell, which created the trust for Catharine Buss, was, unquestionably, understood to be within the operation of the rule in
Shelley’s
case. She had, while a minor, received the land as devisee under her grandfather’s will and, after her marriage, pursuant to an order of the chancellor, in proceedings had to that end, which appointed William Cornell as her guardian for the purpose, it was sold and a portion of the proceeds was invested in Brooklyn real estate. The title need not have been taken by her guardian to himself as trustee; but it was, and to preserve it from the control, or obligations, of her husband, a trust was created for Catharine’s life, with the provision that “from and after the death of the said Catharine Buss, living the said John A. Buss, her husband, then upon trust to pay such rents, issues and profits to the said John A. Buss during his natural life, and from and after the death of said John A. Buss in case he survives the said Catharine, and also from and after the death of the said Catharine, whether the said John A. Buss be then living or dead, to have and to hold the same premises and the rents, issues and profits thereof in trust to and for the sole use, benefit and behoof of the right heirs of the said Catharine Buss, to them, their heirs and assigns forever.” I think the case falls within Mr. Preston’s definition of the rule in
Shelley’s
case:' “ When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession,
*241
from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate.” (From Kent’s Com. vol. IV, *215, and see 2 Washburn Real Prop. *271.) The case of
McWhorter
v.
Agnew,
( 6 Paige, 111 ), illustrates the application of the rule. When, in 1835, the trustee was ordered by the chancellor to sell the real estate and to purchase the property now in suit, upon the joint petition of Catharine, her husband and her trustee, which prayed that the new conveyance might be taken by the trustee “ upon the like trusts as were expressed and declared in and by the original trust conveyance hereinbefore mentioned from Ebenezer Tallman to William Cornell,” the intention, clearly, was to continue the estate as it was. The provision of the Be vised Statutes, under which the rule.in
Shelley's
case ceased- to be operative, was not retroactive upon estates settled theretofore. The estate remained unaffected and the only purpose of the parties was to substitute one piece of property for another, as an investment by the trustee. This view of the intentions and acts of the chancellor and of the parties is reinforced by a consideration of the action of the Supreme Court in 1856. After Catharine’s divorce from her husband, by a decree which extinguished his interest in the real estate, as a provision for alimony, her trustee petitioned for leave to convey the premises to her, setting out the terms of the deed of trust and alleging that its purpose was to protect the property from the control of her husband, that no one except she and her heirs at law had any beneficial interest in the estate and that she had always “ enjoyed the use, rents and profits of the said real estate.” The Supreme Court, thereupon, and after inquiry through a referee, decreed the conveyance by the trustee and it was made; whereupon, subsequently, being in possession, she conveyed to her son. through which conveyance these defendants derive their title. As it was observed in the opinion below,
“
the several courts which dealt with the matter, and all the parties concerned, have acted throughout on the assumption that the heirs of Catharine Buss had never acquired any remainder, or other interest, in the trust
*242
property.” It was because of that assumption that the purchaser, in 1835, took his deed from the trustee and Mr. and Mrs. Russ, as sole grantors, and that the court, in 1856, directed the trustee to conyey to Mrs. Russ. When the trust created by the deed of 1827 was released from the interest of the husband, Mrs. Russ became entitled to have again her estate and to dispose of it as she did. The construction given to the deed of 1827 makes it harmonize with the circumstances and with the rule of the common law, which then obtained and in view of which the courts may be deemed to have acted.
For these reasons, briefly, as for those advanced in the opinion at the Appellate Division, I am of the opinion that the judgment below was right and should be affirmed. •
Parker, Oh. J., O’Brien and Werner, JJ., concur with Landón, J.; Gray, J., reads for affirmance; Martin, J., not voting; Cullen, J., not sitting.
Judgment reversed, etc.