
    William Kirk et al., Resp'ts, v. John Kirk et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed March 21, 1893.)
    
    
      1. Partition — Parties.
    Where, by the will, of a testator, an express trust was created in one-seventh of his real property for the benefit of his daughter, the appointment of a trustee, and his presence as a party, is not essential to give the court complete jurisdiction of an action to partition said property and to invest it with authority to effectually dispose of the interests of all parties in the lands which are the subject of the common tenancy.
    
      2. Same — Aftbhbobn descendants.
    By the provisions of the will at the death of the daughter, the trustee was directed to pay over the share of the daughter to her issue then living, including the issue of any deceased issue per stirpes, and if there was no issue living at her death, then to her brothers and sisters, and to the issue of any deceased brother or sister, per stirpes. The daughter and her children and grandchildren, comprising all her descendants now living, as well as all her brothers and sisters, and the descendants in being both of the living and deceased brothers and sisters, were made parties. Held, that any afterborn children of the daughter, or of her issue, or of her brothers and sisters, or their issue, are concluded by the judgment and cannot successfully assail the title of a purchaser under it.
    3. Same.
    Where the referee has made report of sale, which has been confirmed but final judgment has not been entered, a purchaser at the sale has no concern with the subsequent proceedings and cannot refuse to complete his purchase until the entry of such final judgment.
    Appeal from an order of the supreme court, general term, third department, affirming an order of special term directing appellants’ purchasers at partition sale, to complete the purchase.
    
      John Whalen, for appl’ts; Louis W. Pratt and W. Frothingham, for resp’ts.
   Maynard, J.

We fail to find any defects in the title which the purchaser will acquire upon the partition sale sufficient to reHeve him from his obligation to complete the purchase and pay the amount of his bid. It may be assumed that the will of Andrew Kirk created a valid express trust in one-seventh of his real property for the benefit of his daughter, Mrs. Pruyn, and her heirs; but the appointment of a trustee, and his presence as a party in the partition suit, was not essential to give the court complete jurisdiction of the action, and invest it with authority to render a judgment, effectually disposing of the interests of all parties in the lands which were the subject of the common tenancy. The supreme court has inherent power to execute a trust, and in the absence of a trustee it may, and will take upon itself its execution. Rogers v. Rogers, 111 N. Y., 228; 19 St. Rep., 94; Greenland v. Waddell, 116 N. Y., 242; 26 St. Rep., 667. It appears from the record that it has undertaken the discharge of this duty in the present case. The property is in the possession of a receiver, who is an officer of the court. It has directed the trust fund to be brought into court and to be held for the precise objects for which the trust was created. The trustee, when appointed, will be the successor of the court in the administration of the trust, and will be bound by its judgments and directions now given with respect to the trust estate, to the same extent as if he had been a party to the action. The further objection is made that persons not in esse may have an interest in the trust estate, and that they will not be concluded by the judgment under which this sale is made. By the provisions of the will, Mrs. Pruyn was entitled to the income of the trust estate during life, and at her death the trustee was directed to pay over the share, so held in trust, to her issue then living, including the issue of any deceased issue, who were to take per stirpes and not per capita, and if there was no issue of the daughter living at her death, the trustee was directed to pay over such share to her brothers and sisters, and to the lawful issue of any deceased brother or sister, per stirpes and not per capita. Mrs. Pruyn is a party defendant, and her children and grandchildren, comprising all her descendants now living, have also been made parties, as well as all her brothers and sisters, and the descendants in being both of the living and the deceased brothers and sisters.

It thus appears that every living person who has any interest, either vested or contingent, in this share, is a party to the action, and the interlocutory judgment provides that the net proceeds of the sale shall be brought into court and deposited in a savings bank, and there remain during Mrs. Pruyn’s lifetime, or until the appointment of a trustee. It is true that there is the contingency that afterborn children of Mrs. Pruyn, or of her issue, or of her brothers and sisters, or their issue, may have an interest in this part of the property, but it is now the settled law in this state, that under the circumstances here shown to exist they are concluded by this judgment, and cannot successfully assail the title of a purchaser under it. Whatever doubt there may have been upon this point has been put to rest, and the further discussion of the question closed by the recent decision of this court in Kent v. Church of St. Michael, 136 N. Y., 10; 49 St. Rep., 19, where the authorities are reviewed and the correct rule very clearly enunciated in the opinion of Ch. J. Earl.

The referee has made report of sale, which has been confirmed, but final judgment has not been entered, and the purchaser contends that he cannot be compelled to complete his purchase until this has been done. By the interlocutory judgment the referee is authorized to execute the deed upon the confirmation of his report of sale, upon compliance by the purchaser with the terms of sale, and it is provided that the sale shall then be valid and effectual forever. The purchaser is not concerned in the subsequent proceedings in the action. Upon the delivery of the deed his title becomes perfect, and rests upon the interlocutory judgment and the order confirming the referee’s report. As to him, the order of confirmation has all the force and effect of a final judgment under § 1577. Woodhull v. Little et al., 102 N. Y., 165; 1 St. Rep., 342.

In the present case actual partition has been directed of a large portion of the real property which is the subject of the action, and the proceedings cannot be finally terminated as to that part of the cause of action until the report of the commissioners has been made, but the entry of judgment upon such report will not and cannot disturb the rights which have been acquired and have become vested under the sale and the proceedings specially relating thereto.

The order must be affirmed, with costs.

All concur.  