
    John K. Myers and Francis W. Nuboer, as Trustees under the Will of Mary Ellen Haight, Deceased, Respondents, v. John McCullagh, Appellant.
    
      Specific performance —power of sale, when coupled with a trust — right of the court to confer the power on substituted trustees—protection of after-born parties in interest.
    
    A testatrix by her will which disposed oí a large estate, a considerable part of . which was vested in trustees, devised certain real estate to her son Henry, “for his Ufe and for the life of his present wife, if she survives him, or so long as she shall remain his widow,) — and upon his death, if he survive his said wife, or upon her death or marriage, if she survive him, to his oldest son then living— or if he leave no son, then to his oldest daughter then living in fee."
    
    She subsequently executed a codicil to her will by which, after reciting that she had authorized the trustees mentioned therein to sell certain of her real estate, she authorized them “to sell any other part or parts of my real estate, whenever in their judgment it will be to the advantage of those interested therein so to do, or whenever a sale shall be necessary or expedient in their judgment to make a proper division among the personk who may be entitled thereto; provided, however, that no part of my estate devised to either of my sons for life shall be sold during the lifetime of the son to whom the same is so devised, except with his consent.”
    
      The codicil further provided that, in case of a sale of any part of the testatrix’s real estate before the time of the final division, the trustees should keep the. proceeds invested i,n specific securities, the income derived from which and. the proceeds whereof they were directed to pay over to the persons entitled ta the real estate.
    The trustees named, in the will having died before the testatrix, the court, upon' the application of all the living parties in interest, appointed substituted trustees and provided that they should' execute all the trusts and powers intrust of the trustees named in the will, and should be vested with-all the power and discretion conferred upon such trustees.
    Subsequently the Supreme Court, upon notice to all the parties interested, determined that a sale of the real estate devised to the testatrix’s son Henry was for the best interest of the estate, and authorized the substituted trustees to give a., proper deed thereof.
    
      Held, that the power of sale given to the trustees was a power coupled with a trust;
    That the substituted trustees had power to convey a good and marketable title-to the premises devised to Henry, and that the court would compel a contract, vendee to accept such title;
    That the rights of after-born persons, who' might take an interest under the will, were sufficiently protected by the provision for the investment of the proceeds, of the sale in high-grade securities.
    
      Semble, that the court had power to vest the substituted trustees with the powers, given to the original trustees.
    Appeal by the defendant, John McCuIlagli, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric o.f the county of Orange upon the decision of the court, rendered after a trial at the Orange Special Term.
    
      Frank Moss, for the appellant.
    Af’ Gready Sykes [ Willimn JB. Honiblower with him on the brief], for the respondents.
   ■Woodward, J.:

Mary Ellen Haight died in the month of February, 1895, leaving-a last will, and testament, which was duly admitted- to probate by the Surrogate’s Court for the county of Hew York, on or about the-eighteenth day of April, in the year of her death. It is conceded that Mrs. Haight died seized of the premises referred to as the. home farm, and known as Knapknoll, haying a title in fee simple-arid unincumbered, and the controversy now before us relates to this farm. The will above mentioned, which was subsequently recorded in Orange county, consists of an original will and two codicils. In the original will Mrs. Haight provided as follows : “ I give to my son, Henry Jansen Haight, all my real estate in the town of Goshen, Orange county, New York (except that part of the same known as the Heard farm, which was conveyed to my late husband by John J. Heard and wife hy deed bearing date the thirtieth day of November, one thousand eight hundred and sixty-six, containing about one hundred and twenty-five acres — and also the brick farm house on said’ premises— for his life and for the life of his present wife, if she survives him, or so long as she shall remain his widow,) — and upon his death, if he survive his said wife, or upon her death or marriage, if she survive him, to his oldest son then living — or if he leave no son, then to his oldest daughter then living in fee.” Then follows a provision in which Mrs. Haight gave the excepted premises, “ the said Heard farm and said farm house to my son, Edward Clarence Haight, for his life, and upon his death to his present wife, if she survive him — for her life, or so long as she remains his widow.”

The premises devised to Henry Jansen Haight are involved in this litigation, and comprise the home farm. It is a country seat, largely incumbered with buildings of little practical value for farming purposes, and it will be observed that the will had the effect of suspending the power of alienation during the extreme limit allowed by the statute.

It appears to have been the desire of the testatrix to keep her fortune intact during the lifetime of her sons and their wives, and to transmit the same to her grandchildren, at least in so far as this real estate is involved, but it seems to have occurred to her subsequently that it might not be desirable to retain the property in the form of real estate. At the same time she appears to have been reluctant to permit the title to vest in her own sons, though willing to give them some degree of control, for in the codicil to her will she provides for giving the same estates, with some modifications, which were indicated in the original will, and then adds: “ Having by my will given my trustees power to sell any of the real estate devised to them in trust, and to sell the Heard farm at Goshen, Orange county, as therein mentioned, I further authorize them to sell any ■other part or parts of my real estate, whenever in their judgment it will be to the advantage of those interested therein so to do, or whenever a sale shall be necessary or expedient in their judgment to make a proper division among the persons who may be entitled thereto; provided, however, that no part of my estate devised to either of my sons for life shall be sold during the lifetime of the son to whom the same is so devised, except with his consent,” etc.

It is further provided that In case of a sale of any part or parts -of my estate before the time shall arrive for a final division of the part or parts so sold, I authorize, my said trustees to invest and keep invested the proceeds thereof, or so • much thereof as shall not then be necessary to carry out the provisions of my will relative thereto, in bonds secured by mortgage on unincumbered real estate, or in securities of the United States or of the State of Hew York, and to hold the same in trust, to collect the income thereof, and to pay over the same to the person or persons who under my will are entitled to life estates in the part of parts so sold, and upon the termination of such life estates by death or otherwise, to pay over and distribute the proceeds to the person or persons who would thereupon have become entitled to the possession of the same in - fee simple if the same had not been so sold.” ■

The will and codicil nominated and appointed Stephen D. Hatch and Thomas L. Ogden as trustees and executors of the will, and provided- a somewhat elaborate scheme for the filling of vacancies, which is not necessary to be here considered. Both Hatch and Ogden died before the testatrix, so that upon the will taking "effect there were no executors or trustees in existence, and the question to be determined here is whether the trustees or agents of the court subsequently appointed had the power to convey a good and marketable title to the home farm.

The will and codicil were proved by the sons, Henry J. Haight and Edward C. Haight, who received letters testamentary with the will annexed, and on or about October 24, 1896, the said sons brought a proceeding in Westchester county, which was not contested (all of the parties having any interest in the portion of the estate now under consideration having appeared and consented), under which they secured the appointment of the present plaintiffs as trustees óf the will and codicil of Mrs. Haight, with power to execute all the trusts and powers in trust. The order entered in this proceeding, and which has never been reversed or questioned, “ ordered and decreed that the said John IL Myers and Francis W. ISTuboer, upon the execution and filing of said bonds, be, and they thereupon shall be, fully authorized and empowered to execute and administer all the- trusts, powers in trust, and directions to the trustees thereof, mentioned or referred to in the said will and codicils of Mary Ellen Haight, deceased, and to do and perform all acts and. things relating or appertaining thereto as fully, amply and sufficiently in all respects as the said trustees, Thomas L. Ogden and Stephen D. Hatch, named in and by the said last will and testament and codicils, were authorized and empowered to do under and by-virtue of said last will and codicils, arid all the rights and title: vested by said will and codicils, in the trustees thereunder, and all. the power, authority, control, directions and discretion conferred, upon the trustees thereunder, shall thereupon be vested in, and¡ belong to, said John K. Myers and Francis W. Nuboer, as trustees, as aforesaid.” .

It is proper to state that the will of Mary Ellen Haight, in addition to the matters here involved, disposed of a large estate, a considerable portion of which was vested in the trustees, and the scheme of the will contemplated a general supervision of the affairs of the estate by the trustees named therein. When the court assumed the duty of providing the trustees to give effect to the trusts created by the will, it invested these trustees with all the powers, duties and obligations which the will had imposed upon the trustees named in it. The case is presented in a different light, therefore, from what it would be if the only matters involved were those relating to the real estate now under consideration. Considered abstractly, it might be said, with much of plausibility, that the will, in devising a life estate to Henry J. Haight, with remainder over to his eldest son or .daughter, had made a complete disposition of the property, and that the power of sale was a mere naked power delegated to particular individuals, and not properly to be exercised by any one else, but when considered in the light of the will and its codicils, and in view of the fact that trustees were absolutely necessary to carry out the provisions of the will, it can hardly be questioned, from a practical standpoint, that it was proper in providing the trustees for the express and active trusts, to- invest them with all of the powers, dirties and discretions imposed upon the trustees named in the will, including the power of sale. The intent of the testatrix to provide for the sale of the property, with the consent of the persons holding life estates, is as clear and distinct as any other provision of the will in reference to the trust created, and if it was proper to appoint trustees at all, it is not clear why there should be any different rule adopted in reference to the power of sale than in respect to the other duties of such trustees. In other words, the intent of the testatrix being perfectly lawful, there is no more reason why one provision of the will, governing the conduct of trustees, should be defeated than another, and the fact that Mrs. Haight restricted this power of sale, by providing that the consent of the holders of the life estates should be secured, is evidence of the fact that she did not rely wholly upon the personal judgment or discretion of the' persons nominated as trustees in her will.

The trustees named by the court could not act without the consent of the holders of the life estates, any more than the' trustees' originally named could, and the whole purpose and intent of the testatrix may be carried out with perfect safety to all persons' interested through the action of substituted trustees, acting under the provisions of the will. If we are right in these premises, it follows that the decree appointing the substituted trustees is an adjudication upon the question here involved, and is a complete protection to any one taking title through them.

This position is further strengthened by the subsequent order of the court, issued on the 2d day of February, 1901, upon notice to all of the parties living who have an interest in the matter, in which it is “ordered and determined by the court that it is to the best interests of the estate, and necessary and for the benefit of the estate, that the real property described in the petition should be sold; and the trustees aforesaid are hereby instructed and directed to sell the same oh the consideration referred to in the petition, on such terms as they may be advised; and they are hereby authorized and directed to negotiate, to contract for the sale and to sell and convey, on behalf of the court, the premises therein referred to, and to make such arrangement in regard to the payment of the purchaser’s expenses as they may be advised; and are authorized to take all steps and proceedings that shall he necessary to accomplish the sale and to give a proper deed or deeds for the property aforesaid.”

When we remember that under the will the proceeds of this sale are to be invested and kept invested in certain high-grade bonds, to be held by the trustees “ to collect the income thereof, and to pay -over the same to the person or persons who under my will are ■entitled to life ’estates in the part or parts so sold; and upon the termination of such life estates by death or otherwise, to pay over ■and distribute the proceeds to the person or persons who would thereupon have become entitled to the possession, of the same in fee .■simple if the same had not been sold,” it must be apparent that, should others be born who would be entitled to take under the will, they would have no cause to complain.

It is equally certain that no court will undertake to set aside the ■action of trustees acting under the orders and in behalf of the Supreme Court of the State of Hew York, where all of the living parties in interest' have had notice of all of the proceedings and have consented thereto, for where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting "the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn. This is a rule of convenience and almost of necessity. The rights of persons unborn are sufficiently cared for, if, when the estate shall be sold under a regular and valid judgment, its proceeds take its place and are secured in some way for such persons. (Kent v. Church, of St. Michael, 136 N. Y. 10, 17, and authorities cited ; Kirk v. Kirk, 137 id. 510,516. See, also, Ebling v. Dreyer, 149 id. 460.)

. Here the fund is held in lieu of the real estate, and is to be disposed of at the close of the life estates in exactly the same manner .as though it had remained real property, so that all of the rights of unborn persons are fully provided for, and Avhether the court should have appointed its own agent to execute the power in trust, under fhe provisions of section 141 of the Real Property Law (Laws of 1896, Chap. 547), instead of substituting trustees, is not very material. The Supreme Court has inherent power to execute a trust, and in the absence of a trustee it may and will' take upon itself its execution (Kirk v. Kirk, supra, 515, and authorities there cited), and whether this is accomplished through the medium of substituted trustees or an agent of the court is notj in so far as the defendant here is concerned,, very. material;

In the case at bar the testatrix provided a scheme for the distribution of her property involving the intervention.of trustees. The trustees named in her will were both dead at the time the will became operative, and the courtj upon the application and consent of all of the living parties in interest, has decreed that the present plaintiffs should accept the duties, obligations :and responsibilities of trustees, and that they should be vésted with all .of the- powers which would have belonged to the trustees named in the will, thus carrying out the plain intent of the testatrix, and so long as the decrees of' the court stand unchallenged and unreversed the defendant cannot be heard to claim that they cannot give him a good title to the premises in dispute.- The power of sale given to the trustees by the will and codicil is, in contemplation of law, a power coupled with a trust; it is essentially interwoven in the scheme of the will, which is to be r.e.ad and construed as a whole, and the courts will protect any one holding title through the substituted trustees.

This action was brought to compel the defendant to perform his Contract and to accept the deed tendered by the plaintiffs, the .suffi. stituted trustees. The trial at Special Term resulted In a judgment in favor of the plaintiffs and against the defendant, and we have reached the conclusion that, the.judgment should be affirmed.

The judgment appealed from should be affirmed.

All concurred.

. Judgment affirmed, with costs. ■  