
    Wolcott G. Lane and Lorillard Spencer (3d), as Substituted Trustees under the Last Will and Testament of Lorillard Spencer (1st), Deceased, Plaintiffs, v. Francis Hustace, Defendant.
    First Department,
    January 10, 1913.
    "Will — trust — authority of surviving trustees to convey real property.
    Where a will provides that, if the number of trustees thereunder shall be reduced to less than three, then the survivors shall (with the approval of the cestui que trust, if of full age, but otherwise without such approval) increase them number to not less than three nor more than five persons, and after the death of one of the three trustees appointed by the will, the cestui que trust, being of full age, refuses to consent to the appointment of a successor, the survivors may without application to the Supreme Court convey a marketable title to real property held in trust.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Perry D. Trafford, "for the plaintiffs.
    
      Harold Swain, for the defendant.
   Dowling, J.:

Lorillard Spencer (1st) died January 30, 1888, leaving a last will and testament which was duly admitted to probate by the Surrogate’s Court of New York county on May 5, 1888. The provisions of the will particularly relevant to the present controversy are as follows:

“Fourteenth. I also provide that all trusts and powers which are hereby conferred upon my Executors collectively shall vest in and may be fully exercised by such of them (though it may be less; than all) as shall qualify or assume to act as such executors or trustees, and by the survivors and survivor of them. And I further provide that my Executors and any Trustees appointed by or pursuant to my will shall not be liable for any default" to "insure any building on my estate, or which may be in their charge as Trustees; nor shall they be liable for the defaults of each other, or of any agent they may, with due care, select or employ, but each shall be answerable only for his own bad faith or gross negligence.
“Fifteenth. All powers and trusts hereby given to or •reposed in the Trustees of any trust hereby created may be executed by a majority of the Trustees for the time being, whether such Trustees are the survivors of those herein named, or Trustees hereafter appointed to execute any such trust. And I further provide that any person who shall at any time be acting as Trustee under this, my Willy may resign such trust by deed duly executed for that purpose, and upon accounting in respect to the same to the satisfaction of the then remaining Trustees of the same trust. And I further direct that so soon as the number of Trustees of any trust hereby authorized shall be reduced by death, resignation, or other cause to less than three persons, then, from time to time the surviving or remaining Trustees or Trustee of the same trusts respectively, shall (with the approval of the cestui que trust, if of full age, but otherwise without necessity of such approval), increase their number to not less than three nor more than five persons, by selecting suitable persons to act as such Trustees, and by executing suitable deeds of conveyance and appointment for that purpose, and upon the same trusts in all respects as are expressed in this, my Will, in relation to such trust shares or portions respectively.”

By the 9th clause of the will a trust was created for the benefit of Lorillard Spencer (2d) and his wife, Caroline S., with remainder over to their issue.

Letters testamentary were issued to William Augustus Spencer, Charles Gr. Spencer and James P. Kernochan, the executors named, who duly qualified as executors and trustees under said will. Testator left him surviving his widow, Sarah J. Gr. Spencer, and his children, Eleanora L. S. Cenci, William Augustus Spencer, Charles Gr. Spencer and Lorillard Spencer (2d), all of whom were upwards of twenty-five years of age. Among other property, Lorillard' Spencer (1st) died seized of the premises now known as 33 Park Row in the city of New York. Succeeding the original trustees, William Augustus Spencer, Charles Gr. Spencer and Wolcott Gr. Lane acted as such until the death of Charles Gr. Spencer on November 17, 1906. Thereafter the succeeding trustees, William Augustus Spencer and Wolcott Gr. Lane, continued to act, without the appointment of any successor to the deceased trustee, and on December 12, 1911, contracted to sell the premises in question to the defendant herein for the sum of $190,000. In so doing they acted under the power of sale contained in the 12th clause of said will, as follows:

“I also authorize and empower my executors to sell and convey any real estate which may belong tó me at the time of my decease (not herein specifically disposed of), whenever they may for any reason deem it necessary to do so, either before such partition, as above provided for, or in order to make or equalize partition, or improve other real estate, or while any such real estate shall belong to any person under the age of twenty-one years, or shall belong to any trust share herein provided for, but the proceeds of the property so sold and the subsequent income thereof shall respectively go.and belong to the same person or persons and be subject to the same trusts or powers and the same limitations of estate which, as herein expressed, would apply to such real estate if it were to remain unsold. ”

Before the time to close title.had arrived Lorillard Spencer (2d), one of the beneficiaries of the trust under the 9th clause of the will, and receiving more than three-fourths of the income thereof, refused his approval to the appointment of a new trustee. A deed of the premises was then tendered, to the purchaser, duly executed by . said Spencer and Lane as surviving trustees under the last will, and testament of Lorillard Spencer (1st) for the benefit of Lorillard Spencer (2d) and Caroline S. Spencer, hi;s wife, and remaindermen, but the purchaser refused to accept it, claiming that the two trustees could not convey a good and marketable title in fee simple in and to the premises described in the contract, inasmuch as section 15 of the will of Lorillard Spencer (1st) (hereinbefore quoted in full) directed that if the number of trustees of any trust should be reduced to two or less, additional trustees should be appointed.

Lorillard Spencer (2d) died on March 14, 1912; William ■Augustus Spencer died on April 15, 1912, and thereafter Lorillard Spencer (3d) was appointed trustee in his place and stead and accepted the trust. • But both Caroline S. Spencer and Lorillard Spencer (3d) have refused and still refuse to give their approval to the appointment of another trustee. The question submitted for determination, therefore, is: Can Wolcott Gr. Lane and Lorillard Spencer (3d), as trustees under the last will and testament of Lorillard Spencer (1st),, deceased, for the benefit of Lorillard Spencer (2d), Caroline S. Spencer, his wife, and remaindermen, without application to the Supreme Court of the State of ¡New York, pursuant to the provisions of sections 105 and 107 of the Eeal Property Law, convey a good and marketable title to the premises hereinabove described •—■ no objection to the title being made because of any lease of said premises or any part thereof ? ”

We are of the opinion that this question must be answered in the affirmative. The direction in the will for the appointment of another trustee is not absolute, but conditional, and the condition cannot be complied with. There is here no unequivocal requirement that there shall always be three trustees, or a number not less than that, but only a direction that there shall be an increase of the number of trustees to not less than three, conditioned upon the approval of that action by the cestui que trust, if of full age, but otherwise without the necessity of such approval. In other words, the testator has given to .the cestui que trust, if of full age, a veto power upon action pursuant to the direction, and has in effect made compliance with the direction conditional upon the assent thereto of the adult cestui que trust. ¡¡Nor was this Veto power or condition limited to the personality of the new trustee, but it went by the plain intent of the language used to the power to increase the number at all. It follows that where the condition cannot be complied with because of the refusal of assent by the cestui que trust, and his exercise of his veto power, the direction becomes inoperative and without force, and the situation as to the powers of the surviving-trustees is as if there were no direction whatever for any addition to their numbers. Any other construction would lead to a situation where, by refusing to consent to an increase in the trustees to three, the cestui que trust could prevent the exercise of the power of sale conferred by the will and could leave the trustees without power or authority.

Both at the time of the execution of the will and at present the statutes of this State gave the surviving trustees power to convey real estate.

“ Where a power is vested in several persons all must unite m its execution, but if previous to such execution one or more of such persons shall die the power may be executed by the survivor or survivors.” (R. S. pt. 2, chap. 1, tit. 2, § 112; now Rea. Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 166.) - At common law the rule was that those powers which are coupled with an interest or annexed to the office .of the trustee will pass, if possible, with the trust to the successors or survivors of the original trustees and can be exercised by them. (28 Am. & Eng. Ency. of Law [2d ed.], 988, and cases cited; Underhill Trusts [7th ed.], 381; Perry Trusts [6th ed.], §§ 414, 502, 505.)

By the 15th clause of the will, as has been seen, the testator gave .the right to execute all powers and trusts given to or reposed in the trustees of any trust thereby created to the majority of the trustees for the time being, whether such trustees are the survivors of those therein named or trustees thereafter appointed to execute any such trust.

In 1884 (before this will was made) section 2818 of the Code of Civil Procedure was amended (Laws of 1884, chap. 408) by adding the following matter: “Where one of two or more testamentary trustees dies * * * a successor shall not be. appointed, except where such appointment is necessary in order to comply with the express terms, of the will, or unless * * * the Supreme Court shall be of the opinion that the appointment of a successor would be for the benefit of the cestui que trust. Unless and until a successor is appointed the remaining trustee or trustees may proceed and execute the trust as fully as if such trustee or trustees had not died * *

Since it had long been the established policy of the law to permit surviving trustees to exercise the powers given in a will, and it has been expressly enacted that even in a case where a successor was to be appointed the remaining trustees might act until such appointment should be made, it was essential if the testator intended to limit the statutory powers of his trustees so that they could not be exercised' by any number less than three, that he should say so in the clearest possible terms; but he has, on the contrary, refrained from so saying either directly or by implication.

In Draper v. Montgomery (108 App. Div. 63) the testator had appointed three executors and gave “to them and to any two of them” acting as executors or trustees, power to sell real estate. Two of them renounced, the third alone qualifying and' making the contract to sell real estate. In upholding his right so to do the court said: “ Unquestionably the testator had the right to provide that no deed should be given except by at least two of his trustees. * * * We deem it extremely improbable that the testator intended upon the renunciation of two of his trustees to leave his remaining trustee, practically stripped of the power to beneficially execute the trust. There is no clearly indicated intention to make inapplicable the provisions of section 2642 of the Code of Civil Procedure quoted. Without the intention so to do clearly manifested the general rule of law as expressed in this section must prevail.”

There is nothing in the scheme of the present will which requires the concurrent action of three or more trustees to secure the results aimed at by testator, nor any end sought to be attained which is injuriously affected by the refusal of the cestui que trust to consent to an increased number of trustees.

Judgment is, therefore, directed requiring the defendant to specifically perform the contract for the purchase of the premises in question and to accept from plaintiffs a deed thereof to be duly executed by Wolcott Gf. Lane and Lorillard Spencer (3d) as trustees aforesaid, and further requiring defendant to pay the consideration therefor as in said contract provided, without costs.

Ingraham, P. J., McLaughlin, Olarke and Scott, JJ., concurred.

Judgment ordered for plaintiffs as directed in opinion, with out costs. Order to be settled on notice.  