
    FRANCIS LAHEY, Respondent v. GOUVERNEUR KORTRIGHT, Individually and as Trustee, &c., AND ANOTHER, APPELLANTS.
    
      Trustee—Order appointing him trustee to hold premises set apart for the trust, construction of.
    
    Nicholas G. Kortright by his will directed his debts and funeral expenses to be paid, made a specific bequest and then directed that his property, real and personal, be divided into as many equal shares as might be necessary to give to his wife and children two shares each; that at the time of the division his executors should convey to his wife and each of his children one of such shares, to be at their absolute disposal, free from all control whatsoever, and that the residue of such equal shares should be retained by his executors in trust for the benefit of his wife and children, they to pay to his wife and each of his children during their natural lives respectively the interest or income of one of such equal shares. The will then contained devises over on the death of his wife, and on the death of any of his children, either with or without leaving lawful issue.
    The will contained the following power:—“I give my executors full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate and after the payment of my debts as herein-before provided to invest the proceeds in other real estate, or in personal securities as they in their discretion may.deem most for the interest of the parties interested in my estate.”
    The testator left him surviving his wife Sarah J. Kortright and two sons, Lawrence M. and Gouverneur Kortright. The executors renounced, and letters of administration with the will annexed were issued to the widow.
    The premises whereof the testator died seized were actually partitioned by commissioners in partition, appointed in an action in partition, and certain of the premises (designated as allotment 5) were set off to the trust for Gouverneur Kortright and certain others (designated as allotment 6) to that for Lawrence M. Kortright: A trustee who had been appointed having resigned, an order was made on the petition of Gouverneur Kortright appointing Lawrence M. (upon his giving a bond of $10,000)'trustee under the will, to hold the premises set apart by the commissioners in partition for the benefit of said Gouverneur, and to be held in trust for his benefit. A similar order was made on the petition of Lawrence M. appointing Gouverneur trustee under the will, to hold the premises set apart by such commissioners for the benefit of said Lawrence M. and to be held in trust for his benefit.
    The purchaser of premises included in allotments If os. 5 and 6 at a sale made by Gouverneur and Lawrence M., as trustees, objected to the title on the ground that Gouverneur and Lawrence M. were not vested with any power of sale, and particularized, among other points, that they could only get a power of sale under the orders appointing them, and that those orders did not confer such power.
    
      Held, that the appeal should be determined by a consideration of the construction of the orders appointing Gouverneur and Lawrence M. trustees, and that on the whole record the proper construction to be given to those orders is, that the phrase “to hold” used in those orders was used for purposes of identification and not for the purpose of restricting any powers which the trustees might otherwise have, including that of a power of saje,
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided March 5, 1889.
    Appeal from judgment in favor of plaintiff entered upon findings etc. at special term.
    This action was brought by the plaintiff seeking to be released from a contract for the purchase of the premises described in the complaint, which he had bid off at an auction sale made by the defendants on the 25th day of May, 1887.
    The defendants asked a judgment for specific performance.
    The question litigated is whether the defendants were able at the closing of the title to give the plaintiff a good marketable title. The defendants’ title arises as follows:
    Nicholas G-. Kortright died prior to April 1, 1874, in possession of and the owner in fee simple absolute of such premises, together with others. He left a will which was duly proved and admitted to probate as a will, and real and personal estate, and which was as follows :
    “I, Nicholas G. Kortright, being of sound and disposing mind, memory and understanding, do make, publish and declare this my last will and testament in manner following, that is to say :
    “First.—My executors hereinafter named shall as soon as may be after my decease pay from my estate all my just debts and funeral expenses.
    
      “ Second.—I give and bequeath to my wife all my household furniture, books and plate.
    
      “ Third.—The residue of my property real and personal shall be equally divided between my wdfe and my children and I direct that my executors shall as soon as may be conveniently done after my decease, divide such residue into as many equal shares as may be necessary to give to my said wife and children each two shares thereof, any child or children of mine who shall be born after my decease shall share equally with those born during my life.
    “ Fourth.—At the time of such division my executors shall set apart to my wife and each of my children two of such equal shares which shall be designated as belonging to the said parties respectively.
    “ Fifth.—My executors shall convey to my wife and each of my children one of such equal shares which shall be held by the said parties respectively at their absolute disposal free from all control whatsoever.
    
      “ Sixth.—My executors shall retain the residue of such equal shares in trust for the benefit of my wife and children and shall pay to my wife and each of my children during their natural lives respectively the interest or income of one of such equal shares; my executors shall keep separately the accounts of each share so retained by them.
    
      “ Seventh.—At the death of any of my said children leaving lawful issue, the share of the child or children so dying shall vest in such issue.
    
      
      u Eighth.—At the death of any of my said children without leaving lawful issue, the share of the child or children so dying shall vest equally in my surviving children and the lawful issue of such of my children as may before that time have died, such issue to take the share which his, her or their parent respectively would have taken, if living.
    
      “ Ninth.—After the death of my said wife that portion of her share remaining in the hands of my executors shall be divided equally among my surviving children and the lawful issue of such as may before that time have died; the lawful issue of such of my children as shall have died before the death of my said wife shall take the portion which his, her or their parent respectively Avould have taken if living.
    “ Tenth.—The provision herein made for my said wife is to be received by her in lieu of her doAver in my estate.
    “ Eleventh.—I give my executors full power and authority in regard to the investments of my said estate, and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my debts as hereinbefore provided to invest the proceeds in other real estate or in personal securities as they in their discretion may deem most for the interest of the parties interested in my estate.
    “ Lastly.—I hereby nominate and appoint Edward Min turn and George W. Blunt, of the City of New York, Executors of this my Last Will and Testament, and trustees of my said estate, hereby revoking all former wills by me at any time made.”
    The executors and trustees named renounced and refused to qualify.
    On June 8, 1874, letters of administration, with the will annexed, were issued to Sarah J. Kortright and Benjamin Collins, who qualified and entered upon their duties.
    In 1876 Sarah J. Kortright instituted in the Supreme Court of this state, a suit for the partition of the real and personal estate whereof Nicholas G. Kortright died seized ■ and possessed, and in her complaint prayed that a partition and division of the said estate, real and personal, as directed by said will, might be made among the parties interested therein, under the direction and according to the course and practice of the court, by commissioners to be appointed for that purpose. And in case it should appear that a partition .thereof or of any part thereof could not be made without material injury to the rights of the parties interested therein, then that the same might be sold under the judgment of this court'; and that the proceeds of such sale, after paying the costs and charges of this suit, might be divided among the parties hereto according to their respective rights and interests therein; and that, to that end that the rights and interests of the parties interested in the said estate or in the proceeds thereof, might be ascertained and declared by the judgment of the court; and also prayed for the appointment by the court of a trustee under the will of said deceased in the place and stead of the trustees therein named ; and that the said trustee so appointed might by the judgment of the court be seized as trustee of the shares in said will directed to be held in trust during the lives of the parties interested therein, and that the rights and interests of the parties thereto in the same might be ascertained and declared by the judgment of the court.
    The parties to that action were Sarah J. Kortright, plaintiff, and Gouverneur and Lawrence M. Kortright, defendants.
    The defendants being infants, J. W. C. Leveridge was appointed guardian ad litem for them. The usual order' of reference on title was made. On the coming in of the referee’s report, an interlocutory decree was entered bearing, date October 2, 1876, whereby it was, among other things decreed, that the rights and interests of the several parties to the suit of, in and to the land and personal property referred to and described in the complaint were as stated and set forth in the said referee’s report; and decreed that partition be made of said land and property (describing the land) among the parties to the suit according to their respective rights and interests therein as the same were reported by the said referee, and had been ascertained by the court and established by the judgment; and whereby J. W. C. Leveridge, W. Cary Smith and Bernard Smyth, were appointed commissioners for the purpose of malting such partition. And the commissioners were directed to divide the said lands and premises and personal property into six equal parts, quantity and quality relatively considered, and to allot to the plaintiff one of the said six equal parts to be held by her at her absolute disposal, and one other of such equal parts to be held for her benefit during the term of her natural life, by the trustee .hereafter to be appointed by this court to execute the trusts created and declared by the will of Nicholas G-. Kortright, deceased; and to allot to the defendant, G-ouverneur Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life ; and to allot to the defendant, Lawrence M. Kortright, one other of such equal sixth parts, to be held by him at his absolute disposal, and one other of such equal parts to be held by the said trustee for his benefit during the term of his natural life, such shares to be held and enjoyed by the said parties in severalty according to their rights and interests therein as ascertained and determined in such judgment.
    Thereafter the commissioners made their report, dated March 14, 1877, whereby they reported, among other things, that they had divided the lands and premises in the interlocutory decree and commission particularly described, into six equal parts, designated by them as allotments Nos. 1, 2, 3. 4, 5 and 6; that they had set apart, allotted and assigned to the said Sarah J. Kortright the premises in allotment No. 4; to be held for her benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Sarah J. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaidthat they had set apart, allotted and assigned to the said Lawrence M. Kortright, the premises in allotment No. 5, to be held for his benefit by the trustee thereafter to be appointed by the court according to the right and interest of the said Lawrence M. Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that they had set apart, allotted and assigned to the said Gouverneur Kortright, the premises in allotment No. 6, to be held for his benefit by the trustee, thereafter to be appointed by the court, according to the right and interest of the said Gouverneur Kortright therein, as the same had been ascertained and determined by the court and by the decree aforesaid; that the said allotments were valued by them as follows : allotment No. 1 at sixty-five thousand four hundred and seven dollars; allotment No. 2 at sixty-five thousand seven hundred and twenty-two dollars; allotment No. 3 at sixty-five thousand four hundred and five dollars; allotment No. 4 at sixty-five thousand three hundred and fifty dollars; allotment No. 5 at sixty-five thousand two hundred and fifty dollars ; allotment No. 6 at sixty-five thousand two hundred and fifty dollars ; that the only personal property remaining in the estate was of the value of about twenty-two thousand dollars; that they had made no division thereof for the reason that it would not be more than sufficient to pay a certain mortgage.
    . They also reported as to payments to be made for equality of partitions.
    Thereafter, on the 15th day of March, 1877, an order was made on the petition of Sarah J. Kortright, whereby it was ordered, “ that Benjamin Collins of the city of New York, be and he is hereby appointed trustee under the will of Nicholas G. Kortright, deceased, to hold that portion of the estate of said deceased which under the said last will and testament was devised and bequeathed to the said Sarah J. Kortright, and Gouverneur Kortright and Lawrence M. Kortright during the terms of their natural lives respectively, being three equal sixth parts of the said estate, on his executing a bond to each of the said parties in the penalty of ten thousand dollars with the said Sarah J. Kortright as surety, conditioned for the faithful performance of his duties as such trustee, and for rendering a faithful account of his trust in all courts and places when thereunto required, which bond shall be approved as to its form and manner of execution, and as to the sufficiency of the surety therein, by one of the justices of this court and filed in the office of the clerk of this court , and that, in accordance with the directions contained in the said last will and testament, that the said trustee keep separately the accounts of each of the said shares, and that he pay over to the said Sarah J. Kortright, Gouverneur Kortright and Lawrence M. Kortright respectively during their respective lives the interest or income of the share so set apart to them respectively by the said commissioners, and that on the death of any or either of them he pay over and transfer any money or property in his hands belonging to such shares respectively, according to the provisions in the said last will and testament contained, and as this court may hereafter direct.”
    Thereafter, on the 24th of March, 1877, a final decree was made in said partition action whereby, among other things, it was decreed, that the partition so made by the aforesaid commissioners be firm and effectual forever ; that the appointment of Benjamin Collins as trustee, theretofore made by the order of March 15, 1887, “ be and the same hereby is declared absolute, and that the said Benjamin Collins as such trustee, be and he hereby is invested with full power and authority to execute the trusts created and declared in the said last will and testament of the said Nicholas G. Kortright, deceased, and with all the powers and duties, and subject to the obligations with which trustees are by law invested in like cases;” that the lands and premises constituting allotment No. 4, should be and the same was thereby vested “in the said Benjamin Collins, as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Sarah J. Kortright, during the term of her natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Sarah J. Kortright, during the term of her natural life, and after her death to pay over and divide the principal thereof, to and between the said Gouverneur Kortright and Lawrence M. Kortright,' or their lawful issue, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the lands and premises constituting allotment No. 5 should be and the same was thereby vested “in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Lawrence M. Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Lawrence M. Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof, to and among the lawful issue of the said Lawrence M. Kortright, or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” that the said lands and premises constituting allotment No. 6, should be and the same was thereby vested “ in the said Benjamin Collins as trustee, under the provisions of the last will and testament of the said Nicholas G. Kortright, deceased, to hold the same for the benefit of the said Gouverneur Kortright, during the term of his natural life, according to the trusts declared in the said last will and testament, that is to say, to collect the interest and income thereof, and to pay over the same to the said Gouverneur Kortright, during the term of his natural life, and after his death to pay over and divide the principal thereof to and among the lawful issue of the said Gouverneur Kortright or their legal representatives, or to such person or persons as may be legally entitled thereto, and as this court may hereafter direct; ” and that the said Benjamin Collins “ be and he is hereby appointed trustee of the said personal property now remaining in the said estate, and he is hereby authorized to receive from the administrators with the will annexed of -the said Nicholas G. Kortright, the said personal property as the same shall be ascertained and declared by the decree of the surrogate of the county of New York, on the final settlement of the accounts of such administrators before such surrogate, and that he pay therefrom: First.—The fees, costs and allowances hereinafter awarded and allowed to the said referee and commissioners, and to the plaintiff’s attorney and guardian ad litem. Second.-—The taxes and assessments upon the real estate in the city of Brooklyn herein-before referred to. And Third.—A certain mortgage hereinbefore referred to upon the said premises on the northeast corner of Madison avenue and Twenty-eighth street in the city of New York, or so much thereof as the said personal property might be sufficient to pay.”
    Sarah J. Kortright intermarried with one Taylor and was thereafter known as Sarah J. Taylor.
    Thereafter an order was made at the special term of the Supreme Court on the 3d day of August, 1882, in a matter entitled “ In the matter of the petition of Benjamin Collins, Sarah J. Taylor, Gouverneur Kortright and Lawrence M. Kortright for the discharge and release of Benjamin Collins, as trustee,” whereby it was ordered, “ that upon the said Benjamin Collins conveying and paying unto such trustee or trustees as may hereafter be duly appointed by this court in his place and stead all his rights, titles and interests as trustees of, in and to all and singular the trust estate, both real and personal, with which the said trustee is seized and possessed of as trustee, that he be and he hereby is permitted to surrender his trust and is released and forever discharged of and from all liability or reclamations by the said petitioners, or either of them, by reason of his acts and conduct as such trustee.”
    Thereafter, on the 24th of November, 1882, an order was made on the petition of Gouverneur Kortright, appointing Lawrence M. Kortright (upon giving a bond for $10,000) trustee under the will of Nicholas G: Kortright, to hold the share (being the premises included in allotment 5) set apart by the commissioners in partition for the benefit of said Gouverneur Kortright, and to be held in trust for his benefit. On the same date an order was made on the petition of Lawrence M. Kortright, appointing Gouverneur Kortright (upon giving a bond for $10,000) trustee under the will of- Nicholas G. Kortright, to hold the share (being the premises included in allotment 6) set apart by the commissioners in partition for the benefit of Lawrence M. Kortright, and to be held in trust for his benefit.
    The Supreme Court had full jurisdiction over the persons of the defendants in the partition action, and all the orders in .that action were made on proper notice to them.
    On a sale made by Lawrence M. and Gouverneur Kortright, as trustees, certain of the premises included in allotments 5 and 6 were purchased by the plaintiff, who objected to the title on the ground that they were not vested with any powers of sale.
    The cause was tried at special term. On the trial the plaintiff, among others, made the point that Lawrence M. and Gouveneur could only get a power of sale under the orders appointing them, and that those orders did not confer such power.
    The judge at special term held with the plaintiff on this point, writing.
   Freedman, J.:

Assuming that the power of sale given by the will was an imperative and general power in trust, which, although discretionary as to the time of execution, could, on the death, removal, resignation or refusal to act of the trustees, be conferred by the Supreme Court on a trustee appointed by that court to carry out the trusts created by the will, the question still remains whether the Supreme Court really did confer the power. If it was conferred it must be found in the order of appointment, for a trustee so appointed takes all his powers from the order of his appointment.

In Kortright, trustee, &c., v. Storminger, 49 Hun 249, which was a case submitted on an agreed state of facts, the case as submitted to the general term of the Supreme Court showed that by an order duly made and entered, a new trustee had been duly appointed to hold a certain share of the estate, with all the powers and authority given to the trustees by the provisions of the will. But the order of his appointment was not set forth. Under that broad admission it could well be held, as it was held, that he possessed all of the powers to sell which were possessed by thé original trustees.

In the cases before me the orders appointing Gouverneur Kortright and Lawrence M. Kortright as trustees were put in evidence, and they fail to show that any power of sale was conferred by the court upon either of said trustees.

The order appointing Gouverneur Kortright shows that Sarah J. Taylor and Lawrence M. Kortright had petitioned for his appointment as trustee, “ to hold the share set apart by commissioners in partition for the benefit of said Sarah J. Taylor and Lawrence M. Kortright, and to be held in trust for their benefit,” and that thereupon it was ordered that he be appointed “ such trustee.”

The order appointing Lawrence M. Kortright was made on the petition of Gouverneur Kortright, praying that Lawrence M. Kortright be appointed trustee to hold his (Gouverneur K.’s) share, and by it he is appointed “ such trustee.”

Now it may be conceded that under the decisions of Clark v. Crego, 51 N. Y. 646, and Farrar v. McCue, 89 Ib. 140, it was not necessary for the Supreme Court to expressly confer the power of sale on the new trustees. Their general appointment in place of the former trustees would have carried with it all the powers vested in the former trustees.

But the two orders above referred to did not appoint generally, but specially, and for that reason they did not by implication confer the power of sale.

The foregoing considerations entitle the plaintiff to judgment. Findings and judgment to be settled on notice.

From the judgment entered on this decision defendants appealed.

Platt & Bowers, attorneys, and John M. Bowers of counsel for appellants, argued: —

I. The power of sale given by the will was a general imperative power in trust, which, although discretionary as to the time of execution, could, on the death, removal, resignation or refusal to act of the trustees, be executed by a trustee appointed by the Supreme Court to carry out the trusts created by the will. The power is general, 1 R. S. 732, § 77.—The power is imperative, 1 R. S. 734, § 96.—The power is in trust, 1 R. 8. 734, § 95.— An express trust is created, 1 R. S. 728, § 55.—The Supreme Court has full power to appoint a new trustee, 1 R. S. 730, §§ 68, 69, 70 and 71.—The following authorities seem directly in point: Cook v. Platt, 98 N. Y. 39; Farrar v. McCue, 89 Ib. 140; Delaney v. McCormick, 88 Ib. 174. Cook v. Platt, 98 N. Y. 35, though holding that the trust in that case was an invalid one, sustains the point here maintained.

II. The power of sale was to the trustees, and though imperative, could be exercised as to time in their discretion. In such cases the power passes to new trustees duly appointed, and not to the administrator with the will annexed. Cook v. Platt, 98 N. Y. 39 ; Mott v. Ackerman, 92 Ib. 540. The following cases are directly in point. Ward v. Ward, 105 N. Y. 68 ; Tobias v. Cushman, 32 Ib. 319; Robert v. Corning, 89 Ib. 225; Bacon v. Bacon, 4 Demarest, 5.

III. The trustees having refused the trust, an order discharging them therefrom was unnecessary. By their refusal to act, the trust vested in the Supreme Court, with all the powers and duties of the original trustees; and the court properly executed the trust by the appointment of new trustees. Depeyster v. Clendenning, 8 Paige, 295; Matter of Robinson, 37 N. Y. 261; Dunning v. Ocean Nat. Bk., 61 Ib. 497, pp. 500-502 ; Ross v. Roberts, 2 Hun 90.

IV. It is not necessary for the Supreme Court to expressly confer any authority on the new trustee. The appointment carries with it all the authority vested in the original trustee. Clark v. Crego, 51 N. Y. 646; Farrar v. McCue, 89 Ib. 140; Nugent v. Clune, 117 Mass. 219.

James F. Malcolm, attorney, and Samuel Jones of counsel for respondent, made and argued, orally, various points in support of the judgment.

Per Curiam.

This action was begun to relieve the plaintiff from the obligation of a written contract, made by him and defendants, and by which the former was to buy and the latter to sell certain real estate.

On the trial, the plaintiff maintained that the defendants had no power to sell so much of the real estate as they held as trustees. The learned court held.with the plaintiff in this respect, grounding its decision upon the construction of two orders of the Supreme Court appointing the defendants trustees.

As these orders were of similar tenor, it is necessary to advert but to one of them. It recited that on reading and filing the petition, etc., praying that Lawrence M. Kortright be appointed trustee under the will of Nicholas G. Kortright, deceased, to hold the share set apart and for the benefit of said Gouverneur Kortright and to be held in trust for his benefit, etc., it is ordered that the said Lawrence M. Kortright be and he hereby is appointed such trustee upon, etc. '

The construction given below to this order was, that Kortright was appointed as trustee solely to hold the share, and therefore that the order gave no power to sell it. It was competent, however, for the purpose of construction, to look at the whole of the record which ended in the order. From that record it appeared that the will of a former owner had appointed a trustee to hold the share and for other purpose with power of sale. The trustee named not taking, the Supreme Court appointed a trustee, to execute the trust of the will. Afterwards the trustee so appointed resigned, and the trustee named in the order, now examined, was appointed as appears by that order.

On the whole record, the object of the proceedings appears to have been to substitute some one in the place of the one named in the will, without a purpose of dividing the power that the will had provided. As the trustee had a power of sale under the will, the trustee named in the order had the same power. The expression to hold ” the share of Gouverneur Kortright, was used not as a description of power, but of necessity, in order to identify the trusteeship or office, as under the will there were trusts as to other shares like that of Gouverneur Kortright, excepting that they were for the benefit of other persons. The power of sale was but an incident of the trusteeship, and accompanied that. The words “ to hold ” might have been supplaced by the words of the share,” etc.

There are in the case other questions. The argument at the bar was so shaped that it is proper to determine this appeal, by a consideration of the construction of the order.

The judgment is reversed and a new trial granted, with costs to abide the event.  