
    Clarence H. Kelsey, as Administrator, etc., of Mary G. Pinkney, Deceased, Respondent, v. John McTigue and Annie E. McTigue, Appellants.
    First Department,
    March 3, 1916.
    Ejectment — plaintiff must have legal title — equitable title insufficient — will — equitable conversion created by power of sale — when legal title of trustee does not pass to administrator with will annexed.
    An equitable title will not support an action of ejectment; the plaintiff must have legal title and must prove that he has an estate in fee, or for life, or for a term of years.
    There can be no judgment for the plaintiff in an action of ejectment where he neither alleges nor proves the facts aforesaid.
    Where a testatrix devises lands to executors upon the trust to invest and reinvest and pay the income to a life beneficiary with remainders over, and gives to the executors a full power of sale and the court has held the same to work an equitable conversion so that the lands are to be treated as personal property, an administrator with the will annexed appointed after the death of the executor does not take his legal title, but merely the power of sale. On the death of the executor the legal title vested in the Supreme Court, which had power to appoint a person to execute the trust, and hence the administrator with the will annexed cannot . maintain an action of ejectment.
    A devise to executors in trust makes them trustees of an express trust, although they are not designated as such.
    Appeal by the defendants, John McTigue and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of October, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of November, 1915, denying defendants’ motion for a new trial made upon the minutes.
    
      
      Edward Potter, for the appellants.
    
      Abram I. Elkus, for the respondent.
   Davis, J.:

The plaintiff, as administrator with the will annexed of the goods, etc., of Mary G-. Pinkney, brought this action in ejectment to recover possession of premises in the city of New York included between One Hundred and Fiftieth street on the north, Seventh avenue on the west, and the bulkhead line on the Harlem river on the east. Mary G. Pinkney died December 8, 1908, seized in fee of the premises in question and leaving a will which was admitted to probate December 31, 1908. The testatrix appointed Thomas L. Watt, Archibald Watt and Curtis B. Pierce to be executors and trustees under her will. Thomas L. Watt and Curtis B. Pierce qualified as executors, Archibald Watt having died before the testatrix. Thomas L. Watt died October -10, 1910, and from that time on Curtis B. Pierce continued to act as sole surviving executor until his death, October 21, 1912. After Pierce’s death Grace Watt Thomas and Charles E. Littlefield were appointed administrators with the will annexed. Grace Watt Thomas resigned and was discharged March 3, 1913. Littlefield began this action, but died May 12, 1915; Clarence H. Kelsey was then appointed administrator with the will annexed, and the action was continued in his name.

The premises in question were disposed of by the testatrix, under the 8th and 9th clauses of her will, as a part of the residue of her estate. In the first part of paragraph 8 of the will the testatrix leaves a quarter of the residue of her estate, both real and personal, to Thomas L. Watt absolutely, and in like manner a quarter to Archibald Watt. The remaining one-half of the residue, except one-eighth given absolutely to Grace Watt (now Grace Watt Thomas), is left to the executors upon trust to invest and reinvest and pay the income during a life, with remainders over. The testatrix gave her executors a full power of sale, and in an action to construe this will the Supreme Court held that there had been an equitable conversion of all the real estate of the testatrix.

The plaintiff claims to recover on an alleged equitable title as a basis for his action. He alleges “that the said Curtis B. Pierce as executor was vested with the title to all of the said property as personal property,” because of its equitable conversion, and that the plaintiff, as administrator with the will annexed and as successor to the executor Pierce, has been and is vested with the title to the property above described and is entitled to the immediate possession thereof.

An equitable title will not support an action of ejectment. There must be a legal title. (Cagger v. Lansing, 64 N. Y. 417, 428; Bennett v. Gray, 92 Hun, 86, and cases cited; Code Civ. Proc. § 1519.) This section of the Code of Civil Procedure evidently was taken from the Revised Statutes, which declare the essentials of a complaint and verdict in ejectment. (R. S. pt. 3, chap. 5, tit. 1, §§ 10, 30, subd. 7; 2 R. S. 304, § 10; Id. 307, § 30, subd. 7; 3 R. S. [5th ed.] 593-595, §§ 10, 23 [30], subd. 7; 3 R. S. [6th ed.] 573-575, §§ 10, 23 [30], subd. 7.) The Code has not changed the provisions of the Revised Statutes, except so far as to omit stating expressly the form of the complaint; but the Code, in prescribing the form of the verdict, indicates what allegations and proofs are essential to maintain the action. It is clear that under the Code of Civil Procedure the plaintiff in ejectment must allege and prove that he has an estate in fee, or for life, or for a term of years. In the case under consideration the plaintiff neither alleged nor proved these facts, and naturally the verdict did not specify any one of these estates. Therefore, the verdict was wrong and insufficient for the judgment entered upon it. For this reason the judgment should be reversed.

In the case at bar the administrator with the will annexed did not take the title of the executor Pierce. Of course, he took the power of sale conferred upon the executor (Mott v. Ackerman, 92 N. Y. 539, 553, 554), and was under an imperative obligation to exercise that power of sale, but under the circumstances of this case, he did not take legal title to the premises. This will appear from an inspection of the terms of the 8th clause of the will. Under the devises to Thomas L. Watt and Archibald Watt, the fee of their respective shares of the estate vested in them as devisees, subject to the power of sale in the executors; while as to those shares out of which the testatrix created life estates with remainders over, the executors were trustees of an express trust, and, therefore, the fee of those shares vested in them as trustees. (Morse v. Morse, 85 N. Y. 53, 58; Salisbury v. Slade, 160 id. 278; Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 80; re-enacted by Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 100.) The mere fact that the devise was to executors, without designating them as trustees, makes them none the less trustees when from the terms of the will it appears that they were to act as trustees. (Mee v. Gordon, 187 N. Y. 400, 407.) The case oí Salisbury v. Slade (supra) was quite like the case under consideration. There the testator gave, devised and bequeathed the residue of his estate, real and personal, to his sons and daughters — to his ' sons absolutely, but to his daughters for life with remainders over, the executors to hold the daughters’ shares and pay them the income. The court held that there was an equitable conversion of the land into personalty at the moment of testator’s death and that the naked fee of the land, as it could not remain in suspension, was vested in the trustee and testator’s three sons for the purpose of carrying out in fact that conversion which the law already regarded as equitably accomplished. The real estate, as such, could not be dealt with for any other purpose.”

"Upon the appointment and qualification of the administrator with the will annexed the fee did not pass to him but vested in the Supreme Court, which would then have power to appoint some person to execute the trust. (Horsfield v. Black, 40 App. Div. 265; Dunning v. Ocean Nat. Bank, 61 N. Y. 497, 501, 502; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 111, as amd. by Laws of 1911, chap. 216.)

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Dowling, Smith and Page, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs,  