
    William R. Cornell v. Frederick M. Cornell et al.
    
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1888.)
    
    1. Will—Construction—Specific performance.
    Where the will devised the rest, residue and remainder of the estate, which included certain land, to the executors in trust to convert into money, and divide the same into shares, and pay over the income to the life tenant, and upon his death, the principal to his children, Held, that the executors took a fee of the land; that the children had no interest in the land.
    
      
      2. Same—When title to land vested in executobs.
    The whole estate in law and equity was vested in the executors subject only to the execution of the trust, and the children had simply a right to enforce the performance of the trust in equity; that the children of plaintiff were not necessary parties.
    An" appeal from an order made at the Kings county special term, to compel Frederick Mahnken, the purchaser at the sale in partition, to complete his purchase.
    Prior to the 31st day of July, 1885, Thomas F. Cornell and Stephen B. M. Cornell, claimed to be the owners as tenants in common of the lot and building thereon on the southwest corner of Ooenties slip and Water street, in the city of New York.
    Thomas F. Cornell died in the city of Brooklyn on the 31st day of July, 1885, leaving a last will and testament, and letters testamentary thereupon were issued by the surrogate of the county of Kings to Stephen B. M. Cornell, now deceased, and to the defendants, Mary A. Cornell, and Robert A. Davidson, and the two last named are the surviving executors of said will, and are still acting.
    The following is a copy of portions of the said will, relating to the question under discussion.
    “All the rest, residue and remainder of my estate,vboth real and personal, I give, devise and bequeath unto my executors hereinafter named, to have and to hold the same to, for and upon the following trusts, that is to say: That they sell and dispose of the same and convert it into money, and that they divide the sum thus realized into five equal parts, and that they invest one of said equal five parts for the use and benefit of my son, William R. Cornell, for and during his natural life, paying over to him the interest or income as the same shall be received ; and upon his death, then, that they pay over said fifth part to the child or children of my said son, William R. That they invest another of said five equal parts for the use and benefit of my son, Frederick M. Cornell, for and during his natural life, paying over the interest or income arising therefrom, to him, as the same shall be received; and upon the death of my said son, Frederick M., then that they pay over said fifth to the child or children of said son, Frederick M.”
    The eighth clause of the will contains power of sale, with discretionary power in the executory to sell and reads as follows: 1 ‘ Eighth. I give unto my said executors full power and authority to sell or dispose of any or all of the real estate of which I may die seized, either at public or private sale, and at such time or times as they in their judgment may deem for the best interest of my estate, and to make, execute and deliver good and sufficient deeds for the conveyance of the same to the purchasers thereof.
    
      Stephen B. M. Cornell died intestate on the 31st of January, 1887, leaving him surviving Ann L. Cornell, his widow, and the plaintiff in this action, William R. Cornell, and the defendants Frederick M. Cornell, Charles R. Cornell, Thos. D. Cornell and Emma T. L. Cornell, children of his deceased brother, Thomas F. Cornell.
    On the 10th day of March, 1887, this action was commenced to partition the said property, and the persons named in this action were the only persons named as defendants therein.
    On the 2d day of June, 1887, an interlocutory judgment was obtained in this court directing the sale of said property on the 29th day of June, 1887. On said last mentioned day Frederick Mahnken, the appellant herein, attended said sale and bid for said property $22,950, and paid to the referee ten per cent, on the bid, and also the sum of seventeen dollars auctioneer’s and exchange fees in accordance with the terms of said sale.
    On the 29th day of July, 1887, by the mutual consent of said Mahnken and the referee, the time to complete the purchase was extended to the 15th of August, and subsequently to the 29th day of August, 1887, when the said Mahnken appeared before the referee at his office, at the time and place designated, ready and prepared to receive a deed of said property, provided the referee could give him a good and marketable title to the same. That the said referee tendered a deed, and this purchaser thereupon filed with him the objections to the title.
    
      J. M. & L. B. Seaman, for pl’tff; N. A. Chedsey, for purchaser.
   Pratt, J.

This is a motion to compel a person at a partition sale to take title.

Several objections were made to the title some of which were obviated by subsequent affidavits and orders and the others were overruled by the court at special term.

Under the will of Thomas Cornell it is obvious the devise was to the executors in trust to convert the estate into money and divide the same into shares, invest and pay over the income to the life tenant, and upon his death pay the principal to his children. The executors took a fee. The children had no interest in the land. Bennet v. Garlock, 79 N. Y., 302; Morse v. Morse, 85 id., 53.

The whole estate in law and equity was vested in the executors subject only to the execution of the trust, and the children had simply a right to enforce the performance of the trust in equity.

It follows that the child of the plaintiff was not a necessary party to the action.

The alleged defects in the service of the infant defendants was cured by the filing of subsequent affidavits.

The objection that the judgment does not provide for the protection of the inchoate right of dower of the wife of plaintiff and also the wife of Charles R. Cornell was cured by releases obtained from them.

The objection as to the description of the premises is without merit. The description in the judgment, notice of sale and referees deed is correct. There can be no difficulty in a person skilled in such matters in locating the premises.

The judgment must control and the alleged misdescription in an old deed is not material in identifying the property in question. Brookman v. Kurzman, 94 N. Y., 272; Peck v. Mallams, 6 Seld., 532; Jackson v. Marsh, 6 Cow., 283.

The delay in perfecting the title does not appear to be such as to excuse peformance of the contract on the part of the purchaser. In fact he does not seem to have been prejudiced by it. Ho unreasonable delay was made considering all the circumstances.

We think the order made at special term was proper and must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., dissenting.  