
    Leggett v. Hunter.
    By will made in 1833. the testator devised two-fifths of his real estate to three executors as trustees for his two daughters respectively, who were to have the income for life, and their shares, at their respective deaths, to go to their issue. He gave to his executors discretionary power to sell and to invest the proceeds upon mortgage, or in the purchase of real estate. Two of the executors renounced; the third took out ■ letters and acted alone. He sold the real estate, taking a mortgage tkereon for the purchase-money; foreclosed and bought in the premises. He then brought an action in the Supreme Court against the testator’s daughters and all their children, then in esse, for the purpose of having another person substituted as trustee, and such person being substituted by the judgment of the court with all the powers, trusts and interests held by him under the will, he conveyed the property to such substituted trustee: Held that,
    1. The sole executor who qualified took all the powers conferred upon the three nominated in the will, in the capacity of trustees as well as executors.
    2. His conveyance and repurchase upon the mortgage sale was valid as an execution of Ms power to sell, and to invest the proceeds in the purchase of real estate.
    3. The Supreme Court could confer all the powers of the original upon a substituted trustee, and could exercise such jurisdiction as well in an action instituted for that purpose as upon petition.
    4. The substituted trustee having sold and conveyed the premises, his deed conveyed a perfect title, as well against the testator’s daughters and their children in esse as against their children who might subsequently be born' and acquire interests under the will.
    The Legislature, in the exercise of its tutelary power over the persons and property of infants and others under disability, may provide, by public or private acts, for converting real estate, in which they have vested or contingent interests, into personal property or securities, when necessary for their benefit. and may exercise this power as well in respect to the rights of persons in esse as to the contingent interests of persons yet to be born.
    
      Held accordingly, that an act of the Legislature (ch. 442, of 1853) is constitutional, authorizing the Supreme Court, upon the petition of the cestuis gue trust, to direct the sale of any part or parts of the trust estate from time to time, as might be judged calculated to promote the interests of the infants, whether yet in being or not; providing that the proceeds should be applied by the trustee in paying taxes and incumbrances upon the trust property, or in repairing and improving the unsold portions, or invested for the benefit of those who might become interested under the will; and that all conveyances under the act, if executed by the trustee, should vest in the grantee a fee simple absolute against all persons, whether in being or not, who might have or acquire any interest under the will.
    The trustee’s conveyance under the act conveys an indefeasible-title against anybody who-- might otherwise at any time claim an interest under the will, irrespective of the power of sale conferred on him by that instrument.
    The case of Powers v. Bergen (2 Seld., 368), considered and distinguished.
    Appeal from the Supreme Court. A statement of facts was agreed upon and submitted under section 372 of the Code, and judgment thereupon rendered at general term in the second district, adjudging that certain deeds tendered by the plaintiff would vest in the grantees a perfect title in fee simple absolute, and requiring the defendants to accept the deeds and complete their purchases according to the terms of contracts into which they had entered. The facts are these: Gerardus Post, the father of Mrs. Leggett and Mrs. Barber, died October 22d, 1833, leaving five children. By his will, dated October 12th, 1833, he gave his three sons three undivided fifths of his real estate, and each of the remaining two fifths he devised to his executors, as trustees of his two-daughters respectively, who were to have the income during their several natural lives, and at their deaths respectively the share of each to go to their respective lawful issue, their heirs and assigns forever. He authorized and empowered his executors to sell his real éstate, at such time and in such manner as they might see fit, and directed that his daughters' shares of the proceeds should be invested either on bond or mortgage, or in the purchase of real estate, for their use and benefit; and, in such case, authorized the trustees in the execution of the trust, to sell the same, with the allowance of the Court of Chancery first had and obtained for that purpose. Caleb S. Woodhull, the only one of the executors named in the will who qualified (the other executors having renounced), became the sole executor and trustee» The other persons named as executors subsequently died. The farm in which the premises in question were embraced was owned equally by the testator and his brother William Post, as tenants in common. Woodhull, as executor, sold the undivided-moiety of the farm to Bobert F. Manley for $150,000, and conveyed it to him by deed, dated March 1, 1837, and took back a mortgage to himself, as executor, for the whole purchase money, which was subsequently foreclosed, and the mortgaged premises were sold under the foreclosure decree, and purchased by Woodhull and conveyed to him as executor. Woodhull, as executor, then conveyed to William Post, Jr., one of the sons and devisees of the testator, one undivided tenth part of the farm, and said William Post proceeded, by action in the Supreme Court, in equity, to obtain a partition of the farm, and an actual partition was made between the respective tenants in common; and the specific portions of Mrs. Leggett- and Mrs. Barber therein, were, by the judgment in said action, allotted and set apart unto them respectively, and to their children in esse, to have and to hold unto them, and unto such child or children as might be thereafter born to them respectively, such estate therein as they then had or might be entitled to under the will'of the testator, subject to the estate and interest therein of William H. Leggett, trustee under said will.
    William H. Leggett had been at this time substituted as trustee under the said will, in the place of Woodhull, by a judgment in an action brought by Woodhull against Mrs. Leggett and Mrs. Barber, and all their children; in pursuance of which judgment Woodhull had executed and delivered to William H. Leggett, as trustee, a deed of all the real and personal property held by him, Woodhull, as trustee under said will. The deeds tendered to the appellants recite these facts, and are executed by William H. Leggett, as such trustee, under - the last will of Gerardus Post, deceased. The deeds were also executed by Mrs. Leggett and her husband, and by the special guardian of the six infant children, then in esse, of Mrs. Leggett, appointed by the Supreme Court in pursuance of an act of the Legislature (ch. 442 of 1853). That act authorized the Supreme Court, upon the petition of Mrs. Leggett and her husband and her descendants in being (by next friend, if infants), to authorize the sale in fee simple absolute of the lands devised to Mrs. 'Leggett and her descendants, or of “any part thereof, from time to time, as may be adjudged to be expedient and calculated to promote the interests of the descendants of said Susan Post Leggett, whether yet in being or not, to whom or for whose benefit the trusts may enure, after the death of said Susan, by the provisions of said will.” It required the appointment by the court of a suitable guardian for such of the descendants of Mrs. Leggett as might be infants: authorized the court to prescribe the terms of sale, and after a sale and confirmation thereof to direct a conveyance by Mr. and Mrs. Leggett and the guardian: and enacted that all such conveyances if executed by Leggett (the plaintiff), trustee, or by such person as might thereafter be appointed in his place, should vest in the purchaser a fee simple absolute as against all persons having any claim to or interest in the premises under the will of Gerardus Post and all descendants of Mrs. Leggett whether in being or not, who might become interested therein under the will.
    
    Under this act a petition had been presented, a sale authorized and confirmed, and conveyances directed. The sufficiency of the conveyances, as to form and manner of execution, and the regularity of the proceedings to authorize them, were not questioned by the defendants, but they presented to the court below, and argued here, these questions:
    1. Had William H. Leggett, as the substituted trustee, power under the will to sell and convey the property in question, or did. he acquire any such power by the order of the court confirming the sale ?
    2. Or did the recited acts of the Legislature, and the proceedings set forth, confer any such power?
    3. Can the purchasers acquire a perfect title in fee simple, under and by virtue of the deeds tendered to them?
    
      Joseph M. Greenwood, for the appellants.
    
      J. E. Burrill, for the respondent, made these points upon the second of the above questions:
    
      
       There is a statute entirely similar in respect to the estate of Mrs. Barbee,
    
   I. The Legislature, as the sovereign power of the State, had the power to authorize and direct the transfer, conversion, sale or other disposition of the interests which the cestuis que trust, and the children of Mrs. Barber and Mrs. Leggett in esse at the time of the passage of the acts had in the land. 1. It has frequently exercised such power. (Act relating to Spingler's Estate, Laws 1829, 567; Act relating to Morris’ Estate, Laws 1853, 19; Act relating to Estate of T. B. Clarke, Laws 1814, ch. 78, which was decided to be valid in 20 Wend., 365.) 2. The possession of such power by the Legislature has been established by judicial decisions. (Clark v. Van Surlay, 15 Wend., 436; S. C. in Error, 20 id., 365; Rice v. Parkman, 16 Mass., 326; Edwards v. Pope, 3 Scam., 465; Morris v. Clymer, 2 Barr, 277; Bases cited under next point.)

II. The Legislature had the power by the acts in question to direct a sale of the real estate so as to bind the interests of any future children who might be born to Mrs. Leggett and. Mrs. Barber, and who would, on their birth, become interested in the remainder created by the will. 1. The Legislature is jested with all the powers of government, which have not been expressly or impliedly delegated to other departments, or reserved to the people themselves by the provisions of the Constitution; and there are no restraints upon its power, except such as are imposed by that instrument. (Calder v. Bull, 3 Dall., 386; Cooper v. Telfair, 4 id., 19; People v. Draper, 15 N. Y., 543, 549; Town of Guildford v. The Supervisors, 3 Kern., 146; Cochrane v. Van Surlay, 20 Wend., 381, Verplanck, Sen.; Wynehamer v. The People, 3 Kern., 378, 391, 410, 428, 440, 451, 464; per Comstock, J., 391, 392; per Johnson, J., 410-413; per Selden, J., 428, 432; per Hubbard, J., 452; per T. A. Johnson, J., 464, 465, 476; Benson v. The Mayor, 24 Barb., 252; Clarke v. The City of Rochester, 24 Barb., 450, 470, 480, 489.) 2. The Legislature possesses absolute dominion over property, except so far as it has been restricted by the Federal and State Constitutions, and there is no restraint upon legislative interference, even with vested rights of property, except that provided by those Constitutions. (Edwards v. Pope, 3 Scam., 465 ; Morris v. Clymer, 2 Barr, 277; Carroll v. Lessee of Olmstead, 16 Ohio, 251.) 3. If the Legislature is vested with the entire legislative power of the people, except so far as it is restricted by the Constitution, then an act of the Legislature, unless it be in violation of the Constitution, “ is as absolute and uncontollable as any act of the British Parliament, or as any law flowing from the sovereign power of any form of government.” (1 Kent Com., 441-448; same cases cited in last Point; Counsel arguendo, 8 Cow., 566; Rice v. Parkman, 16 Mass., 826 ; Edwards v. Pope, 3 Scam,., 465; 5 Cruise's Dig., tit. 33, 1; 2 Bl. Com,., 345; Walker v. Holman, 16 Peters, 367.) 4. The cases above cited, decided by the courts of this State, and which upheld the acts in relation to the estate of T. B. Clarke, sustained them on the very ground that the Legislature, in respect to persons laboring under disability, acted as parens patrias. No power to act as such is conferred, expressly or by implication, upon the Legislature by the Constitution, and the existence of it cannot be claimed upon any other principle than that here contended for. (15 Wend., 436; 20 id., 365.) 5. Upon the same principle depends the power of the Legislature to enact general statutes relating to the estates of infants and lunatics, the acts relating to partition of lands, and the various acts relating to estates tail, joint tenancies and tenancies in common. 6. Tire legislative authority of every independent government, when unrestricted by express limitation, is sufficiently extensive to- embrace the power to pass the acts in question. (2 Bl. Com., 345; 5 Cruise's Dig., private acts, tit. 33; 8 Cow., 566; Edwards v. Pope, 3 Scam., 465; Carroll v. Lessee of Olmstead, 16 Ohio, 251; Morris v. Clymer, 2 Barr, 277.)

III. The provisions of the Federal Constitution, which prohibits the States from passing any ex post facto law or laws impairing the obligation of contracts, have no application to the question before us. (Const. of U. S., Art. 1, §§ 1, 10; 1 Kent Com., 409, Lect. 19, part 2; Carpenter v. Commonwealth, 17 How. U. S., 456; Calder v. Bull, 3 Dall., 386; Satterlee v. Mathewson, 2 Peters, 413.)

IY. The 1st section of the 1st article of the State Constitution, which provides that no member of the State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers, has no application. (Const., art. 1, § 1.) 1. This section applies only to persons in esse, and cannot be reasonably construed to embrace those in futuro. 2. The rights referred to are personal rights, as distinguished from rights of property.

V. 'The acts in question are not in violation of the part of the 6th section of the same article of the State Constitution, which provides “ That no person shall be deprived of life, liberty or property, without due process of law, nor shall private property be taken.for public use without compensation.” 1. This provision applies only to persons in esse. It cannot be said that persons in futuro have property or vested rights in property any more than they have life or liberty. 2. Eo instanti each person comes into'being, he becomes subject to all the then existing laws of the State to which he owes allegiance, and can claim no rights either of person or property, other than such as are subject to, consistent with and established' by such laws. 3. The right of transmitting property after death is derived wholly from the sovereign power, and it cannot be exercised, except under such regulations as may be prescribed in reference thereto. 4. If the State, before the birth of a person who, under laws existing at the death of a testator, would be entitled to an interest in property devised by will, should enact a law creating new rules and regulations for the transmission of property, and declaring that the interest which would otherwise pass to such individual should not so pass, such act could not be said to affect any vested rights, or impair the obligation of contracts. ( Carpenter v. Commonwealth, 17 How. U. S., 462; Morris v. Clymer, 2 Barr, 277; Edwards v. Pope, 3 Scam., 465; Carroll v. Lessee of Olmstead, 16 Ohio, 251.)

VI. The right of the Legislature to pass various statute^, such as those relating to estates tail and joint tenancies, and the sales of lands liable to be sold for taxes and the conveyance thereof in fee simple, depends upon the principle herein contended for, and has been repeatedly sustained by judicial decision. 1. The statute of this State, in regard to estates .tail, declared that all estates in tail should be and thereby were .abolished, and that all persons then seised in fee tail should be deemed seised of the same in fee simple. (Act 12 July, 1782; reenacted February 23, 1786.) 2. By that act remainders vested in interest in persons in being were destroyed, and the precedent estate converted into a fee simple. 3. It was decided that this act should be liberally construed, and on this principle it was held, although against the grammatical construction of the words used, that the act of 1782 was prospective. (Leon v. Burtiss, 20 Johns., 487; Jackson v. Van Zandt, 12 Johns., 169; Vanderheyden v. Crandall, 2 Denio, 9; Wendell v. Crandall, 1 Comst., 492, 493; Lott v. Wycoff, 2 Comst., 357, 358; 4 Kent Com., 11—15, showing the different States which have passed similar acts.) 4. Various statutes converting joint tenancies into tenancies in common have been sustained against objections like those here urged against the acts now under consideration. (Bambaugh v. Bambaugh, 11 Serg. & Rawle, 193; Holbrook v. Finney, 4 Mass., 568.) 5. The various provisions of the statutes regulating proceedings in partition and providing for the sale of the premises where an actual partition cannot be had, depend, upon the same principles. 6. The various statutes providing for the sale in fee simple of property liable to be sold for taxes, and the apportionment thereof between the tenant for life and remainderman, are as broad and sweeping in their effects as the acts in question. (Laws 1841, ch. 341, p. 325, § 2; Laws 1842, ch. 154, p. 191, § 2; Laws 1855, ch. 327, p. 539, § 6.) 7. These acts, last specified, have been construed sufficient to pass to the purchaser the estates of the life tenant and of the remaindermen, whether in esse or not, and have been adjudged to be constitutional. (Jackson v. Babcock, 16 N. Y., 249; Blakely v. Calder, 15 id., 617.) 8. For other instances in which a similar exercise of legislative power has been sustained by judicial decision. (Sergeant v. Kuhn, 2 Barr., 393; Estep v. Hutchinson, 14 Serg. & Rawle, 435.)

VII. The case of Powers v. Bergen (2 Seld., 358), which is relied on by the appellants’ counsel, is clearly distinguishable from that now before the court. 1. The acts in that case authorized a sale without any adjudication of any court or body as to the necessity or propriety of a sale. 2. Nothing appeared on the face of those acts, or in that case, showing what facts existed to induce their passage. 8. It did not appear in that case that any incapacity existed, by reason of infancy or otherwise, disqualifying the remaindermen from disposing of the estate in the lands themselves, and this fact had a controlling influence with the court in making that decision. (See opinion at page 366; per Johnson, J., 3 Kern., 417.) 4. These objections are obviated in the present case.

Allen, J. The validity of the trusts in this case was settled by this court in Leggett v. Perkins (2 Comst., 297). It was there held that the trustees took a fee in the real estate of the testator by implication: that the testator having constituted his executors trustees of the estate devised to the daughters during their lives, and having authorized them as such trustees “ to take charge of, manage and improve the same, and to pay over to them from time to time the rents, interest and net income thereof, it was “very obvious that a legal estate in the premises was necessary to enable the trustee to discharge these duties.” It was moreover held that the trust was a valid one under the 3d subdivision of section 55 of the statute of uses and trusts (1 R. S., 729); and that by section 60 of the same statute the whole estate in law and equity vested in the trustees. The court decided that the direction to receive and pay over to his daughters “the rents, interest, or net income thereoff instead of using the words “to apply them to the use of those persons," was sufficient, and invested them with the legal estate within the principle as laid down in Brewster v. Striker (2 Comst., 19). These questions, therefore, must be considered as settled so far as they bear upon a decision of those now before the court, and it would be useless and unprofitable at this time to discuss or review the very able opinions of those judges whose views met with a favorable reception by a majority of the court.

It is contended by the counsel for the defendant that the plaintiff, as trustee, could derive no power of sale under the will, because the powers and trusts were conferred on three executors and trustees, and were personal and limited to them.

The case shows that Caleb S. Woodhull was the only person named who consented to act and did act under the will; the other two renounced their appointment as executors, and declined to act as such, and have both since deceased. Letters testamentary were issued to Woodhull, and he acted as solé executor and trustee until the plaintiff, Leggett, was substituted in his stead. Under these circumstances, the sale by him to Manley was equally as valid as if the other executors had joined in the sale. By section 55 (2 R. S., 109), it is enacted that where any real estate or interest therein is given or devised by any will legally executed to the executors named therein or any of them, to be sold by them or any of them, or where such estate is ordered to be sold by them or any of them, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale. Section 15 (2 Revised Statutes, 71), enacts that every person named in a will, and not named as such in the letters testamentary, shall be deemed to be superseded thereby, and shall have no power or authority whatever as such executor, until he shall appear and qualify.

The case of Taylor v. Morris (1 Comst., 341) was one where a testator had appointed three persons his executors, and authorized them, or the survivor of them, to sell and convey any part of his real estate, “in case they should find it proper or most fit, in their opinion,” to sell the same for the purpose of paying his debts. Two of the executors neglected to qualify, and never acted as such. The other executor qualified and took out letters testamentary in his own name only, and subsequently sold and conveyed a portion of the testator’s real estate. The court held that the power contained in the will was well executed; that -the conveyance was valid, and that the power extended as well to discretionary as to peremptory powers of sale, whether it was coupled with an interest or not. In the present case the power is “to sell and dispose of all and any part of the (testator’s) estate, both real and personal, either at “public or private sale, and at such times and in such manner, and for such sum or sums as to them, in the exercise of their best judgment, may seem most expedient,” bringing ‘the case in its most important features almost precisely within that just cited. The principle had before been established by the cases cited by Judge Ruggles in his opinion, and also in Niles v. Stevens (4 Denio, 399), where an executor refused to act, and an executrix duly qualified. The court held that the devise vested the estate in the executrix as though she only had been named, and that her conveyance passed a valid title. The cases cited by the defendant’s counsel in opposition to this doctrine (Sinclair v. Jackson, 8 Cow., 584, and Green v. Miller, 6 John., 39), were decided before the adoption of the Revised Statutes, and do not therefore conflict with the decisions made after their adoption: besides, in the former case, the trustees had all taken upon themselves the execution of the trust, and one of them had not joined in the execution of the instrument, though living at the time of its date.

The trust created in the will was an express trust in respect to the interest of the two daughters. (1 R. S., 728, § 55, subd. 3; Leggett v. Perkins, 2 Comst., 297.)

The other two executors having renounced and having subsequently died, Mr. Woodhull, the only executor who qualified, became clothed with all the powers conferred by the will upon .all the trustees. The fifth clause appointed the executors trustees to the estate of the two daughters, and authorized and directed them, “ as such trustees, to take charge of all such portion of the estate as was given to them respectively, and to take care of, manage and improve the same to the best advantage, and to pay over to them respectively from time to time the rent, interest or net income thereof.” It further authorized and directed the “ executors,” in case of any sale or sales of the real estate, or any part thereof, to put out and invest the shares, devised to the daughters respectively, of the proceeds, and to secure the same by bond and mortgage on such real estate as they should judge ample and sufficient for its permanent safety and security; or, in the exercise of their discretion, to invest the proceeds in the purchase of. real estate for the benefit of them. And afterwards, in the execution of the trust, at any time, if they thought best, to sell the same, or any real estate so purchased, with the allowance of the Court of Chancery first had and obtained for that purpose. It is pretty evident from this whole clause that the allusion to them as executors, so far as the provisions and powers therein are concerned, was as to their capacity as trustees, and not merely as executors, as such, under other provisions of the will.

Woodhull, therefore, was empowered and authorized to invest the daughters’ shares of the proceeds of the real estate, if sold under the will, in the purchase of real estate for their use and benefit.

It appears that among other real estate, the testator died seised and possessed in fee, as tenant in common with his brother William Post, of what was known as the “ Post Farm,” situate in the city of Brooklyn. That on the 1st day of March, 1837, Woodhull, as executor, &c., sold and conveyed, by deed of that date, to Robert Manly, the undivided moiety of that'farm for the consideration of $150,000 ; and took back from him a bond and mortgage covering the premises, to him as executor, for the purpose of securing the payment of the purchase money. That mortgage was foreclosed, and on the sale Woodhull purchased a portion of the mortgaged premises, and took a deed therefor in his official character. Mo division or partition of the real estate had then been made; and by this purchase he held two-fifth parts of the property as the shares of the two daughters, and the residue for the benefit of the other devisees under the will. The question here arises, what title did he acquire by the purchase under the foreclosure. By the fifth clause of the will the executors (as trustees) were fully empowered, as they thought best and most advisable, to partition, divide or make sale of all or' any part of the real estate owned between the brother of the testator and himself; “and on. any such division or sale to take and accept as the share of my estate, or some part thereof, and also to purchase either at public or private sale for the benefit of my estate generally, or for some one or more of my children, so much of the property so sold or divided as they might judge most expedient and proper, and most beneficial to all persons interested therein.” Under this clause it appears to me that Mr. Woodhull became not only invested with the legal title to the property, so far as the daughters’ life estate in their shares was concerned, but also to the rights and interests of their children. It was probably for the benefit of all persons interested in the estate, that the premises under the mortgage sale should be purchased in by the trustee. At all events, it seems that he came to such conclusion, in the exercise of his discretionary power granted in the will. He could not well sell, dispose of or purchase real estate for their benefit, unless all his acts in relation to such purchases and sales were for the ultimate benefit of the children, nor unless their rights could be sold, or could be affected, or benefited by the purchase of real estate, or investment of money therein, as the trustee should think proper. One was necessarily incident to and a consequence of the other. And the evident intent of the testator could not be carried into full effect, without giving to the clause this construction. In other words, the purchase back under the Manly mortgage was an investment of their shares of the proceeds of the sale in real estate, as authorized by the will, to the daughters for life, and to the children after them. Otherwise no real estate could be purchased by them, or investment made, which would enure to the benefit of the children. Woodhull, therefore, took the whole legal estate in fee by implication, so far as the infants were concerned. By the partition afterwards, he held two-fifths as the share of the daughters and their infant children, until his resignation as trustee. If this be so he had the power to sell, under the approbation of the Court of Chancery (now of the Supreme Court), until his resignation. He did not sell, however, but resigned his trust, and by an order of the Supreme Court, bearing date the 30th day of March, 1850, the plaintiff, William H. Leggett, was appointed trustee under the will in his stead, with all the powers, trusts and interests which had existed in his predecessor.

The next question which arises, therefore, is, whether the Supreme Court could confer all the powers of the original upon a substituted trustee.

The statute in relation to uses and trusts (1 R. S., 730, § 69,) declares, that upon the petition of any trustee the Supreme Court may accept his resignation and discharge him from the trust, under such regulations as shall be established by the court for that purpose, and upon such terms as the rights and interests of the persons interested in the execution of the trust may require. A subsequent section provides for the removal of any trustee who shall have violated or threaten to violate his trust, or who shall be insolvent, or shall be deemed unsuitable. The 71st section enacts that the Supreme Court shall have full power to appoint a new trustee in place of a trustee resigned or removed, or cause the trust to be executed by one of its officers under its direction. These sections extend only to cases of express trust, to which class the present confessedly belongs. But they are extended by section 102, to apply equally to powers in trust, and the grantees of such powers. The plaintiff, Leggett, was substituted trustee under these provisions, and it appears to me that he had full power under them to execute the trusts remaining under the will, under the approbation of the Supreme Court. It is a well settled principle, that a court of equity will not permit a devise in trust, which is valid in other respects, to fail for the want of a trustee. (4 Ves., 708; 5 id., 495; 6 id, 656; 8 Paige, 295; 1 Barb. Ch., 565; 2 id., 381.)

It is insisted, however, that Leggett was not invested with the powers of his predecessor, because the proceedings for that purpose were commenced by action instead of petition. It is believed that this objection is not tenable. The 69th section is, that when the application is by a trustees for permission to resign, it may be upon petition; but the section does not declare that the trustee shall or may not commence by action. Indeed, the latter is the most solemn and conclusive mode, and includes in its definition the proceeding by petition. In the matter of Van Wyck (1 Barb. Ch., 565), just cited, the Chancellor remarked that the usual and most proper course of proceeding for the purpose of changing a trustee was by bill (action now), to which all persons interested are either actually or constructively made parties. There is no force in this pbjection.

Leggett, -therefore, being thus substituted, was, in my judgment, vested with all the powers of Woodhull, and was authorized to sell as he did under the proceedings instituted in the Supreme Court. No objections have been raised by the defendants to the regularity of these proceedings nor to the form of the deed tendered. My conclusion on this branch of the case is, that the defendants would acquire a good title to the premises under the deed executed by Leggett as trustee under the will; and it was well remarked by my brother Strong,. in his opinion in the 'court below, that the fact that “ it had been sanctioned by the Legislature, and that others had joined with him in the conveyance, would not surely vitiate or impair the title.”

But it is proper here to consider, whether that act was constitutional and valid in whole or in part, and how far it can or may operate in favor of the plaintiff and in aid of the defendants’ title. If Woodhull acquired the rights of the infant children when he purchased back the premises under the mortgage, a good title, as has been shown, could be conveyed to the defendants. If not, the question as to the validity and constitutionality of the legislative acts, becomes vitally important. It was certainly competent for the Legislature to relieve the daughters from the prohibition contained in the 63d section of the statute (1 R. S., 730), that no person beneficially interested in a trust for the receipt of the rents and profits of lands, can assign or in any manner dispose of such interest. The acts already referred to, provide for the conveyance of the rights of the daughters, and obviate any objection under the section just cited. So far then, they are constitutional and valid. ■ But it is believed that these acts of the Legislature were valid, in all respects. It is urged, however, that they are unconstitutional and void; "because the will being valid under the general laws of the State when made, no after legislation could alter or destroy its effect, and the Legislature could not divest the title or the contingent interests of persons not then in being.

In the case of Cochran v. Van Surlay (20 Wend., 365), the Court of Errors held, that a private act of the Legislature, authorizing the sale of the estate of infants for their maintenance and education, is within the scope of the legitimate authority of a State Legislature, and was constitutional. The Chancellor, in his opinion, doubted whether the Legislature could by special acts authorize a sale, so as to affect the contingent rights of persons not then in existence, and who might thereafter become entitled to the same, under the limitations in the will. That question was not, however, distinctly passed upon, as it was not necessary, the Chancellor observed, to a decision in that case. It appears to me, moreover, that the decision of the court necessarily disposed of the question. How could a sale be sanctioned, as was the one there, unless it cut off all contingent interests? The same objection was made to the title as is made here, and the court said the sale was valid and effectual.

In Powers v. Bergen (2 Seld., 358), this court held, that the Legislature (except in cases of necessity, arising from the infancy, insanity or other incompetency of those in whose behalf it acts) has no power to authorize by special act the sale of private property for other than public uses, without the consent of the owner. In that case no reason appeared, and the court said the existence of such necessity will not be presumed, when the facts which would create it are neither shown by proof nor recited in the statute. The present case is clearly distinguishable from that, inasmuch as the proceedings show that the property authorized to be sold consisted of vacant lots, which had never yielded any income since the death of the testator: that the property had been largely assessed for taxes, and had been sold for the non-payment, by reason of the want of means to pay them: that the certificate of the sales were held by purchasers, and were drawing rates of interest at fifteen per cent, and that unless redeemed, the equity of redemption would be lost: that the daughters and their children had no other property or estate, except a small income and annuity, for their support and education: that the New York property was the only productive property, and that, by reason of its dilapidated condition, required the expenditure of large sums of money for repairs: that the income derived from it was not sufficient for such repairs, and means could not be provided, unless by a sale of the Brooklyn lots. In Mrs. Leggett’s case it had taken within $3,500 of one-quarter of the net income of the New York property for several years to pay the current expenses and charges upon it.

Under all these facts and circumstances it was certainly a wise provision, and calculated greatly to promote the future interests of the infant heirs, as well as the present rights of the daughters, to authorize a sale, as the Legislature did, if they possessed the power so to do. The strongest reasons existed for this course, and the case is entirely distinguishable from that in 2 Selden, 358. Indeed, that case would seem to sanction the proceedings here. The trustees held the premises in question, in trust for the use of the daughters during their lives, and the remainder was limited to their respective lawful issue, their heirs and assigns forever. Their children in esse at the time of the passage of the acts were all minors, and were seised in fee of the entire remainder, subject to open and let in after-born children, as to whom there was, of course, no vested interest; but each child as it was born would become seised of its proportionate share, as tenant in common with its brothers and sisters. (2 R. S., 723, 725, §§ 9-13, 28, 30; Cochran v. Van Surlay, 20 Wend., 365; Hannan v. Osborn, 4 Paige, 336, 342; Nodine v. Greenfield, 7 Paige, 544; Moore v. Lyons, 25 Wend., 119, 143, 144.) Such children, not having any vested interest at the time of the sale, could have no claim upon the premises; but they would be entitled to receive their shares of the proceeds of sales, and of these the acts and the proceedings do not deprive them. The Legislature, as the sovereign, had the power, for good and sufficient reasons, to authorize and direct the sale of the interests of the cestuis que trust, and of the children in esse at the time of the passage of the acts. It has frequently exercised such power. (See act relating to Spingler's estate, Laws 1829, 567; act relating to Morris' estate, Laws 1853, 19; act relating to estate of T. B. Clarke, Laws 1814, ch. 78.)

The courts have established this power by judicial decisions, Clark v. Van Surlay (20 Wend., 365), and I think the Legislature also had the power to direct, as it did by the acts in question, a sale of the premises so'as to bind the interests of any posthumous children of the daughters, who on their birth would become interested in the remainder created by the will. Such children, when they came into existence, would be subject to then existing laws. They would be divested, as already remarked, of all claim upon the land, but would be entitled to their shares of the proceeds of the sales in the hands of the trustees. (Baker v. Lorillard, 4 Comst., 266, 267.) The Legislature is vested with all the powers of government which have not been expressly or impliedly delegated to other departments, and there are no restraints upon its power except such as are imposed by the Constitution. (3 Kern., 378; 20 Wend., 381; 15 N. Y., 543; and various other cases.) The acts in relation to the estate of Clarke, before cited,, were sustained by the courts on the ground, as I understand it, that the Legislature, in respect to persons acting under disability, acted as parens patriae.

The facts and circumstances in the present case show, that it was almost absolutely necessary to a protection of the interests of those entitled to a future interest in the premises and to prevent their entire loss. The power must exist somewhere, and it is necessarily in the Legislature,, to provide for their sale or disposition for the benefit of those concerned. See opinion of Johnson, J., in Jackson v. Babcock (16 N. Y., 246, 249), and of Denio, J., in Towle v. Forney (14 N. Y., 423), where the decision of the Court of Errors in Cochran v. Van Surlay (20 Wend., 365) was upheld upon the principle of stare decisis; both which cases are, I think, conclusive. The acts of the Legislature made it requisite that the court should order and confirm the sale, if, in its opinion, it would be for-the best interest of the cestuis que trust and their children, whether then in being or not. All the proceedings have been in strict conformity with the acts. The rights of all have been carefully and fully protected. No injustice has been done, but on the contrary great benefits have been secured, as well to all those in full life whose rights are concerned, as to any who may have or be hereafter entitled to any interest. In my judgment a conveyance to the purchasers under the sales will carry the entire fee, against after-born children as well as those existing. These views lead to the conclusion that the purchasers will acquire a valid title to the premises in question by the execution and delivery of the deeds, which have been tendered; and the judgment should, therefore, be affirmed.

All the judges concurred: and the court, by independent, majorities on each point, affirmed the validity of the deed on both grounds; as an execution of the trustee’s power under the will, and as being effectual, irrespective of that question under the act of the Legislature.

Judgment affirmed,  