
    Oliver J. Wells, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants. (Action No. 1.)
    Second Department,
    October 4, 1907.
    Will construed — failure of power of sale — when heirs take lands unconverted — condemnation- of easement — action for injunction — measure of damage — section 154 of Real Property Daw not retroactive — extra allowance.
    An imperative direction that testamentary trustees sell land is: modified by a subsequent clause malting the sale dependent on the discretionary consent of the sole beneficiary and heir, and if there be no disposal of the corpus and the power of sale be not executed during the life of the beneficiary,' the power together with the incidental trust. terminates on his death, and the lands, unconverted, pass to his heirs.
    Hence, when a railroad, after the death of the-beneficiary has-by condemnation acquired easements in the lands ns against certain of his heirs, its title to those. easements is superior to that of a subsequent purchaser taking title from the trustee and all the heirs.
    In an action by such purchaser to enjoin the operation of the railroad the corporation should only be required to pay the value of the easements not . already condemned.
    •Section 154 of the Real Property Daw, providing for the survival of a power lodged in two persons, is not retroactive or applicable-to titles vested before the enactment of said section.
    Extra allowance granted. . -
    - Appeal by the defendants, The Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of. the county of Kings on the 18th day of January, 1907, upoii the. decision of the court rendered after a trial at the Kings.County Special Term. ' . . ’ ■
    • The action was brought to obtain a perpetual injunction against the .defendant to restrain it from maintaining' and operating its elevated railroad bn Myrtle avenue, Brooklyn, in front of the plaintiff’s abutting lot. The judgment grants the injunction unless the defendant.pay to,the-plaintiff a specified sum as damages.-
    The défendant claims that .the judgment should be modified by. reducing the damages to two-fiftlis thereof, on the ground that it acquired three-fifths, of the easements in question by condemnation proceedings in 1893. It did- acquire the interest therein of three of the five children of Plerbert’ Eearn, if title to the- lot was in the said five children at that time, The said Herbert Eearn died in 1892 leaving the said children as his only heirs at .law. His mother died in 1881 the owner of the said lot and other lots, and ‘leaving him her sole heir. . The second clause of her will is as follows: “I direct that my real, estate shall be sold by my trustee hereinafter named at such time or times as he may deem most beneficial to my estate, but -at private sale only and .on the conditions hereinafter stated, and that said estate be converted into money.” By .the third clause-she devised all of her real estate to Jerry A. Wernberg, “in ' trust nevertheless for the purpose of letting or leasing any. part or ' the whole of said property for not longer than one year at any one letting, and to receive the rents, issues and profits thereof and therefrom, to pay taxes, assessments, insurance premiums and such expenses as aré necessary to protect and preserve, the same,, to pay the interest due or to become due on any and all mortgage liens on' said property, from the surplus; rents, if apy there should be, to pay One-half on the principal of the mortgage, and the other’half to' said Herbert Fearn,.until the same shall be sold”. The fourth clause confers on the said trustee a. power to sell of mortgage all. or any part of the real estate “ during the continuance of this trust, and to execute any contract, deed, conveyance or mortgage sufficient to con-Arey the title or encumber the property when my said son approves of .the terms of the-conveyance, and only then, such approval to be evidenced by his becoming a subscribing Avitness thereto ”, The corpus is left undisposed of by the will.'. No sale was made in Herbert Fearn’s lifetime. After his death the trustee and alsti liis said five children conveyed the lot to the plaintiff, but after the said . condemnation proceedings of the defendant by which it acquired the easements of the said lot in Myrtle -avenue of three of the said children. . .
    
      Charles L. Woody [George D. Yeomans with him on the brief], for the appellants.
    
      Cyrus V. Washburn [George W. Sichels with him on the brief], ■ for the respondent. •
   Gaynor, J.:

While the first clause of the will contains an imperative direction to sell the real estate, and standing alone would convert the realty into personalty, it is modified by the next two clauses, which' make such sale depend on the discretion and consent of Herbert Fearn. It cannot take ■ place at all except by his consent. The corpus is left.undisposed of by the .will. The trust created is to collect the rents and pay expenses, and use one-half the net income to pay off the mortgage on the land and pay the other half over to Herbert Fearn until the land should be sold by his consent. If he do not consent, the power of sale must bnd with liis life. The trust must also end then, for it is only for his benefit, and also only an incident of the power of sale. The power of sale does not survive for the' purpose of a distribution, for the corpus is not disposed of or distributed by the will. If the will manifested an intention of the testator that there should be in the end, and at all events, a sale and distribution, then we would have a very different case; the power of sale would have to survive to save the intention and scheme. The cases of Barber v. Cary (11 N. Y. 397), Kissam v. Dierkes (49 N. Y. 602) and Gulick v. Griswold (160 N. Y. 399) therefore apply. Section 154 of the Beal Property Law is not to be considered as it is not retroactive (Gulick v. Griswold, supra); and besides, title was vested in the defendant before the said" section was passed. .

The case is one which a trial judge may consider difficult and extraordinary, and the extra .allowance was properly granted.

The judgment should be' modified by - reducing the amount oí damages to two-fifths thereof, and, the allowance proportionately.

Hirsghberg, P. J., Hooker, Rich and Miller, J j., concurred.

Judgment modified by reducing the amount of damages to two-fifths of the sum allowed, with a proportionate', reduction of, the extra allowance, and as modified affirmed, without costs.  