
    POWELL M. BRADLEY, FREDERICK W. BRADLEY, AND MARIA G. BRADLEY, BY RICHARD L. MACRAE, THEIR GUARDIAN AND NEXT FRIEND, vs. MARK YOUNG, A. THOMAS BRADLEY, FREDERICK W. JONES, HENRY H. DODGE, WALTER S. COX, AND CHRISTOPHER C. WOLCOTT AND ELIZABETH W. WOLCOTT, HIS WIFE.
    In Equity. —
    No. 3153.
    Where a testator directed in his will his estate to be divided immediately after his death into four equal parts, one part to he allotted to his son, one part to the children of his son, and in regard to the other parts, one each to his two daughters respectively, the latter shares to he held by his trustees for the separate use of such daughters freo from their husbands; and if either of said daughters dies without issue, their said fourth parts are also devised to the said children of his son, share and share alike; and where the trustees had power to sell, subject to the aforesaid trusts, it was held that after the death of the son and of both daughters, without issue, the estate never having been divided, the trusts became extinguished, and the estate vested in the children of the son, and that, consequently, the surviving trustee had no power to sell and convey any part of the real estate.
    STATEMENT OF THE CASE.
    The bill was filed in this case by the complainants, who are devisees under the will of William A. Bradley, late of the District of Columbia, to vacate and set aside a deed from A. Thomas Bradley, surviving executor under the same will, to Mark Young, one of the defendants, and also to set aside and declare null and void conveyances from the latter to Frederick W. Jones and Walter S. Cox; and the prayer of the bill is further that complainants may be decreed to be entitled to the possession of the premises in said conveyance mentioned and for an account of the rents and profits of the premises.
    William A. Bradley died in the month of August, 1867, leaving a will containing, among others, the following provisions :
    
      “Item first. After the payment of my just debts and funeral expenses by my executors hereinafter named, I give, devise, and bequeath all of my estate, real, personal, and mixed, of whatsoever kind it may be, and wheresoever situated, to my son, William A. Bradley, jr., and my cousin, A. Thomas Bradley, their heirs, executors, and administrators, the survivor of them, his heirs, executors, and administrators, in trust, first, to set apart the house in which I now reside, on New York avenue, in the city of Washington, together with all and singular the household effects,, including pictures, plate, books, and other chattels now therein or therein at the time of my death, to my dear wife, to be held exclusively by her for and during her natural life; and out of the net income derived from my said estate, of every sort, to pay to her one equal third part annually, or quarter-yearly, as she may prefer, so long as she shall live, Next, I direct my said trustees, and the survivor of them, to divide all of my said estate, immediately after my death, including that which is real, personal, or mixed, into four equal parts, as near as in their, or his, judgment and valuation can be done, and if they cannot agree, they shall select a'competent, disinterested third person to aid them in such division and valuation, and the decision of any two of said three persons shall determine said division and valuation, and of these parts my said trustees or said survivor shall allot one part to my said son William A. Bradley, jr.; one part to the children of my said son, now or hereafter born in lawful wedlock; one part to my daughter Jeannette W. Linton; and one part to my daughter Sidney Y. Edelin, whose portion shall embrace the property owned by - me situated in Corning, Steuben County, in the State of New York, and known as, and termed in. my family, the “ Corning property;” and if either or both of my said daughters die without issue, either before or after my death, her or their said fourth parts shall go to the children of my said son, now and hereafter born, share and share alike, subject, as to Sidney’s portion, to the subsequent provisions in this will, as aforesaid, as the “ Corning property.” Next, I direct my said trustees, and the survivor of them, to hold the portions my said daughters receive under this my will in trust, to and for their respective sole and separate use, as if femes sole, aud never married, free from the control of any present or future husbands they or either of them may -ever have, and not to be in any manner subject to the control, or liable for the debts, of such husbands, for and during their respective natural lives; and if either of them dies before or after me, leaving issue, such issue shall have the mother’s part, share and share alike, to be held in trust for them by my said trustees aud the survivor of them until the youngest -of such issue shall attain the age of twenty years, or in the discretion of my said trustees and the survivor it may appear best to terminate said trusts; and in the absence of issue of either or both of them, then to follow the dispositions herein-before provided in that event ; but, whether with or without issue of my said daughter Sidney Y., nothing shall be herein understood to prejudice the conditional estate hereinbefore provided for her said husband. Next, I direct that upon the division into four parts, hereinbefore prescribed, my said son William A. Bradley, jr., or his heirs, shall have and receive his portion immediately, except only his distributive -share in the personal property left to my wife for her life, and free from any and all trusts whatsoever contained in this will.
    “Item second. I give aud bestow upon my said trustees and the survivor of them the largest powers and discretion in taking charge of and managing my estate, and authorize them and the survivor to have, hold, direct, aud control the •aforesaid trust-property according to their or the suvivor’s best judgment, and to sell and dispose of the same, or any parts thereof, from time to time, subject only to the aforesaid trusts, and as freely as I myself could do if living; and also in all things to have the same powers, rights, privileges, benefits, advantages as I myself have, or might have if living, in all and any contracts, bargains, agreements, companies, or other compacts to which I am now or may become a. party.”
    The complainants are the children of William A. Bradley, jr., mentioned in the will, and were all living at the date thereof, and at the time of the death of the testator. At the time of filing the bill they were respectively six, nine, and thirteen years of age. The said William A. Bradley, jr., died in March, 1869, and since then A. Thomas Bradley has acted as the sole trustee and executor of the estate. No division of tlie estate of the testator into four parts, as directed by the will, has ever been made, nor has there been any allotment of the several shares to the devisees entitled thereto, and the whole property has remained undivided, and in common, with the consent of all the beneficiaries. William A. Bradley, jr., left a last will and testament, wherein he devised all his estate to his widow for life, upon condition that such devise should cease upon her intermarriage, and in that event she should take the same interest which she would take had he died intestate; and, subject to this devise to his widow, he devised all his estate to such of the complainants as might be living at her death or intermarriage. In the month of February, 1872, she intermarried with the defendant, Christopher C. Wolcott. Sidney Y. Edelin died without issue in the spring of 1870, and Jeannette H. Linton in the month of January, 1871, also without issue. The complainants now claim that by reason of the will of their father, and the marriage of their mother, and the death without issue of their aunts, they are entitled to three-fourths of the estate of their grandfather, the said William A. Bradley, in addition to the one-fourth devised to them directly by his will. Iu explanation of the right which they assert under the will, we here state the fourth paragraph of the bill in the absence of printed briefs:
    
      u 4. Your orators are advised and charge that, under the-true construction of the said will of William A. Bradley, the division of the estate directed to be made was to take place immediately after his death, and the part or share of their father was to be received by him immediately upon such division, and was to be free from any and all trusts contained in said will; and that the part or share of your orators was likewise to be received immediately, and was to be free from said trusts, and that the power of the trustees-had reference solely to the trust-estates devised by said will to said daughters of the testator and- their issue, and that, upon the determination of said trust-estates, said powers became extinguished, and that any sale or disposition of any part of said trust-estar.es, made during the continuance thereof, was to be subject to the trusts of said will.”
    It also appears that William A. Bradley died seized and possessed of certain mill property, situate in Georgetown, fronting on the south bank of the Chesapeake and Ohio canal, which at the time of his death was leased to the defendant, Mark Young, which lease was afterward renewed by the trustees for the term of three years from the 11th day of July, 1868, with a privilege of renewal for two more. He was also seized and possessed of certain other property adjoining said mill on the west, running back from the canal to Water street; and also wharf property between said Water street andthe channel of thePotomac River, all of which was under lease to the Cumberland Coal and Iron Company, which had subsequently assigned all its interest in said lease to the Consolidation Coal Company, which was the tenant of the property at the time of filing the bill. In June, 1871, A. Thomas Bradley, as surviving trustee under the will of William A. Bradley, executed a conveyance to Mark Young of the mill property, as also the property adjoining the same on the west, and also a water lease, together with the privilege of using the wharf property on the river, for the consideration of $13,900.
    It is averred that this deed was procured by fraud and for an inadequate consideration. This is denied in the answer by Mark Young, and a great body of testimony was taken on these points by both sides which it is not necessary to consider, as the decision turns upon the effect of the will, and not upon the proofs. The complainants adhere to the proposition that the sale and conveyance are null and void, because no power of sale was given to the trustees in respect of the share devised to their father or in respect to the share devised to them, and that the power of sale given by the will had relation exclusively to the trust-estates created for the benefit of the daughters, and that the death of these without issue had extinguished the trust-estates and vested the property thereof in the complainants, and that the conveyance, having been made before the estate was divided into four parts as directed by the will and after the death of both daughters without issue, was void for want of power in the surviving trustee to execute it.
    The justice who heard the case at the special term decreed that the sale and conveyance by A. Thomas Bradley, surviving trustee of 'William A. Bradley, deceased, to the defendant Mark Young, were null and void by reason of the want of power and authority in the said A. Thomas Bradley to make the same. On appeal, the general term was unanimously of the same opinion, and in that respect confirmed the decree of the special term.
    
      W. D. Davidge and Reginald Fendall for complainants.
    
      Walter S. Cox and F. W. Jones for defendants.
     