
    In the Matter of the Petition of George Christie et al., for Appointment of a Trustee Under the Will of Oliver Butter-field.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    
      1. Will—Trust.
    The will of B. gave one-third of his real and personal estate to his wife, R., and the rest to his eight children, to be paid within a year after the youngest became twenty-one. It continued: “I give all my real and personal estate to my executrix, R. * * * in trust for the payment of the above legacies, with power to sell and dispose of the same * * * provided, however, that no part of my real estate shall be sold until each of my said children shall have arrived at the age of twenty-one.” Five of the children were minors when the testator died. Held, that as there was no authority to R. to receive rents and profits, the trust was only valid as a power, subject to which the land passed to the devisees.
    :2. Same—Power of sale.
    R. held such power, not as an independent one, but as a power attached to her office as executrix; and upon her death the power did not vest in this court, but passed to an administrator with the will annexed, to be appointed.
    ■3. Same—Suspension of ípower of alienation.
    But the trust power was void, because by it the power of alienation was suspended for more than two lives in being, i. e., during the minority of five infants. 1 R S., m. p., 723, §§ 15, 14.
    Appeal by purchasers from the heirs-at-law of Oliver Butter-field of portions of his real estate from an order appointing Frank H. Graham trustee, in place of Ehoda Butterfield, executrix of Oliver, who, the said Ehoda, is now dead, to perform and execute the trust contained in the will of Oliver. The petitioners were creditors of Oliver, who died in 1868, and they held a. note against Oliver. In 1876, his executor and executrix, Ehoda, gave the petitioners a note, which was put in judgment in 1881, and has not "been paid. This claim is the basis of this proceeding.
    
      Young & Kellogg (A. D. Arnold, of counsel), for app'lts; Job Q. Sherman (.Matthew Male, of counsel), for resp’ts.
   Learned, P. J.

Oliver Butterfield died July, 1868. By his-will he gave one-third of his estate, real and personal, to his wife Ehoda. He gave the rest and residue, real and personal, to his eight children and one grandchild, equally, except that one daughter was to have half of the amount which others had. The legacies were to be paid within a year after the youngest child became twenty-one. He made his wife executrix and his son executor.

He then continued: “I give all my real and personal estate of" every kind to my wife Ehoda, executrix, * * * in trust for

the payment of my just debts and the legacies above specified, with power to sell and dispose of the same.”

As there was no authority given to Ehoda, executrix, to receive-the rents and profits, no estate passed to her. But this trust was valid as a power, and the land passed to the devisees, subject to-the power. 1 E. S., m. p., 729, § 56.

Therefore the title to the land vested at once in the devisees named in the will, and all which Ehoda, the executrix, took was-a mere power in trust, which enabled her to sell the land and ap- ■ ply the proceeds. She had no estate as trustee. As to the one-third which was devised to her, she could sell and convey that as-owner.

She held that power in trust as a part of her authority as executrix; not as any independent power. There had been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to-the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining, 8 Paige, 295. For the matter has now been definitely-settled by Molt v. Ackerman, 92 N. Y., 539, at pages 553, 554. ítis there held that such power belongs to the office of executrix and passed to the administrator with the will annexed.

This decision is a construction of 2 E. S., m. p., 72, § 22, defining the power of administrator with the will annexed. And thus construed that section must constitute a practical exception to-the general rule, that on the death of a trustee the trust or the power in trust vests in the supreme court. 1 E. S., 730, m. p., § 68; 734, § 102.

Hence it follows that if there be any power in trust under this-will yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust, not connected with the office of executrix. On the contrary if this power be still in existence, it belongs to the office of the executor. And as the executrix is dead it must be executed (if at all) by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty.

There are some other difficulties in this case, and we do not intend to decide whether the petitioner is, or is not, entitled to relief in any court. It is enough to say first that this is a mere power in trust which conveyed no estate to the executrix, Rhoda: second, that the power as it is given to pay debts and legacies, and especially as real and personal estate are mingled, belongs to the office of executor and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and fourthly, that for these reasons it is not for the court to appoint a trustee of the power and thus to separate it from the office of executor.

Whether these petitioners can show themselves at this late day to be creditors of the deceased and can obtain the appointment of an administrator with the will annexed we do not decide. 2 R. S., m. p. 74, § 27. There has been great delay. It does not appear precisely when the will was proved. But it is averred that the deceased left personal property worth over $1,000, which of course would be the first fund for the payment of the debts. The executrix died July 29, 1887; and the heirs of the deceased have sold some of the land.

There is another point which should be considered. The will of the deceased provides that no part of his estate shall be sold until all of his children arrive at twenty-one. At his death, five were under that age. Therefore the trust power could not be executed until these five had arrived at twenty-one. The estate of the devisees was subject to the trust power ; so that they could not convey a clear title until the five minors had reached twenty-one. In Henderson v. Henderson, 113 N. Y., 1, at 13; 21 N. Y. State Rep., 800, it was held that a clause that executors having a power should not be compelled to make partition, etc., until five years from probate did not suspend the power of alienation. For it was said that the power of sale was not" suspended when the executor was merely permitted to delay. Robert v. Corning, 89 N. Y., 225. The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension to be valid may not be beyond the two lives limited by statute. 1 R. S., m. p. 723, § 15. The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Section 14. Eow the executrix can not execute the power until the majority of the five minors. And until that time the conveyance of the devisees would be liable to be- defeated by the subsequent execution of the power. Hence the power does suspend the absolute power of alienation until that time and is therefore void.

The order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Landon and Mayham, JJ., concur.  