
    John Townshend, Pl’ff and App’lt, v. Edward Frommer et al., Def’ts and Resp’ts.
    
      New York Superior Court, General Tern,
    
    
      Filed June 3, 1889.)
    
    1. Trust—Ejectment—Title necessary to support action.
    Clarissa E. Curtis being the owner in fee of certain real estate, subject to a mortgage which she assumed, she and her husband on Hay 1, 1837, conveyed the premises by deed to Eliza Racey, as trustee. The conveyance was to Eliza Racey, the party of the second part, her heirs and assigns, * * * in trust nevertheless, that the said party of the second part shall receive the yearly income during the life of said Clarissa, free from all claim or control or debts of her husband, and also in trust, “ that the said party oí the second part and her heirs shall, at the decease of said Clarissa, convey the said lanas * * * in fee simple to the children of the said Clarissa, living at her decease, and the surviving children of such of them as may then be dead, in equal proportions per stirpes and not per capita” etc. The said mortgage was subsequently assumed, and after the above conveyance was made to Eliza Racey, the assignee thereof commenced a suit, in 1837, to foreclose the mortgage, in which foreclosure proceedings Clarissa Curtis and her husband and Eliza Racey were made parties defendants, but no child or grandchild was made a defendant. Judgment was obtained on the mortgage, and the land was sold, and a master’s deed given to the purchaser. The present defendants claim under the master’s deed then given. In 1885, certain of the children and grandchildren of the said Clarissa conveyed four undivided tenth parts of the land to the plaintiff, who (the said Clarissa having died in 188C) commenced this suit in ejectment to recover the possession of these undivided interests. Held (1), that the rule given by Chitty (chap. 1, p. 190) prevails in this state, that to maintain ejectment, “ the lessor of the plaintiff must also have a strict legal right; a mere equitable and beneficial interest, without the legal title will not suffice,” and the plaintiff having no legal interest in the land cannot mainta.n ejectment.
    2. Same—Powers in trust—Effect of trust not being executed by CONVEYANCE.
    
      Held (2), that under this deed of trust to Eliza Racey, the trustee, as such trustee, took an estate in the premises for the life of Clarissa E. Curtis; and the estate in fee.in reversion remained in the grantor, Clarissa E. Curtis and her heirs, subject to a power in trust vested in the said trustee, Eliza Racey, to convey the premises upon the death of the said Clarissa to those persons who might then (upon the death of said Clarissa) be entitled to demand its execution. As, therefore, the trust has not been executed by conveyance as directed, Mrs. Curtis remained entitled in fee, and that fee was foreclosed in the foreclosure suit and has been transmitted to the defendants under the master’s deed.
    3. Same—When not merely nominal.
    
      Held (3), That the trust created by this deed is not merely nominal. It is not such a trust that equity will execute it by deeming the conveyance made, although it has not been made. The statute keeps the trust in existence as an express trust as completely as if it were an express trust of that kind, in which the trustee validly becomes possessed of the fee so far as the purposes of the trust require.
    ■4. Same—Estate of cestui que trust.
    
      Held (4), That the cestui que trust takes no estate by .the trust deed, but he will have an estate according to the act done and appointment of the use. When that act is done, then and not till then, is the rule to be applied, that the appointment relates back to the deed of the grantor of the power.
    5. Same—Trustee of power to convey—Duty of—Execution of power—When equity will not compel.
    
      Held (5), That trustee of a power to convey, has an active duty imposed upon him, that is to convey. If such were not his duty, and if the law executed it, the result would be an estate at law, and then equity would not compel, as it has the right to compel, the execution of the power, for being executed at law, equity would have no jurisdiction.
    Exceptions of plaintiff ordered to be heard in the first instance at general term, a verdict having been directed for defendants.
    
      John Townshend, plaintiff in person; John F. Dillon, for resp’ts {JohnE. Parsons, John C. Shaw and Oratz Nathan, of counsel).
    I. Plaintiff has no estate legal or equitable in the locus in quo. He cannot therefore maintain this action of ejectment, and the court’s direction to find a verdict for defendants was correct.
    Plaintiff claims title through conveyances by children of Mrs. Curtis, who, he claims, were vested with a remainder in fee by the trust deed of May 1,1837. This proposition the defendant controverts.
    Under this deed of trust to Eliza Racey, the trustee therein named, said Eliza Racey as such trustee took an estate in the premises for the life of Clara E. Curtis, and the estate in fee in reversion remained in the grantor Clarissa E. Curtis, and her heirs, subject to a power in trust vested in the said trustee Eliza Racey, to convey the premises upon the death of the said Clarissa to those persons who might then (upon the death of said Clarissa) be entitled to demand its execution.
    The effect of this trust deed depends upon the meaning of the provisions of the statutes of New York in relation to uses, trusts and powers.
    The trust for the life of Mrs. Curtis was valid as an express trust within section 55 of the Revised Statutes.
    Under that express trust the whole estate, legal and equitable, for the life of Mrs. Curtis was in Eliza Racey, trustee, by section 60.
    The intended trust to convey to the children of Mrs. Curtis was a valid power in trust within section 58.
    Under the power in trust the whole estate, legal and equitable, in fee in reversion, remained in the grantor, Mrs. Curtis, by section 59. The power in trust is valid within the article on powers.
    The intention of the grantor can be effectuated by holding the attempted trust valid as a power in trust, and in no other way.
    Now, in this case we have a direct and infallible means of determining from the instrument itself exactly what the intention of the grantor was. The intention of Mrs. Curtis clearly was, not to grant to her children any present estate or interest whatever, but to create a trust, and to impose upon the trustee an imperative power to convey to such children, etc., if any, as should be alive at her death. Such a power, in trust, was well known at common law, and it created only a contingent right to get ■ an estate in favor of such children as might then be living.
    The power of appointment to children may be restricted in its terms to the children living at the death of the parent. Leake’s Digest of Real Property, 390.
    This applies to powers, to be exercised under a trust. Sugden on Powers (8th ed.), 676; Kennedg v. Kingston, 2 J. & W., 431; Bielefield v. Record, 2 Sim., 354; Swift v. Swift, 8 id., 168; Thomas v. Thomas, 14 id., 234.
    Further, the object of Mrs. Curtis was to tie up the property for the benefit of Mrs. Curtis and her children. On the plaintiff’s theory, the children would get an estate which they could at any time alienate. Thus, what was intended * * * to take effect only at the time of the death of the grantor, would be turned into a present gift, subject to all the vicissitudes of life, and which their creditors could attach and sell on execution, within their mother’s life-time and beyond her power to prevent. This theory does violence to the clearly expressed intention of the grantor. The deed shows and expresses an intention not to grant a legal estate to the children, but to create a trust for the very purpose of withholding the legal estate from them until the death of Mrs. Curtis.
    Mow, observe that by holding that the trust is valid as a power in trust, the intention of the grantor is fully effectuated. In the court below the plaintiff relied on section 47, but this section does not apply to the present case, nor to any case where the intended trust is valid as a power in trust. That section was designed to convert into legal estates the interest of the cestuis que trust in those passive trusts, where, as they had been created before 1830, and as they still existed at that date, the trustee had the legal estate, and, at the same time, while the legal estate was in the trustee, the cestui was entitled, by the terms of the grant, devise or assignment, to actual possession. That conversion was effected by the “now is” part of the section. It was against such separation of the legal from the equitable estate, the estate in one person, and the right to the contemporaneous actual possession in another person, that the Revised Statutes on Uses, Trusts and Powers were especially directed.
    In the reviser’s judgment (note to section 45), “above all by separating the legal and equitable estate and introducing two classes of rights over the same lands, governed by different rules and subject to different jurisdictions, they rendered titles perplexed and obscure and multiplied litigation.” “ To remedy these and other alleged inconveniences, various statutes of partial operation were passed previous to the statute (27 Hen.; viii, chap. 10), from which our statute of uses was borrowed.”
    The object of sections 47-49 was to prevent the separation of the equitable from the legal estate. There is only one estate now, which is both legal and equitable. Sections 48-50 show how sections 47-49 must be construed. To hold that the children of Mrs. Curtis took a legal or any estate in remainder, would nullify the express provisions of the statutes. In order to bring a case within section 47, the grant itself must, in terms, give the right of possession as distinguished from the right to get a title.
    A grant or devise to a trustee " to convey " upon a specified future event, creates an action and not a passive trust; an executory and not an executed trust.
    In construing the power “to convey” as above, we are urging, not a useless, an unheard of, distinction, but one which has long had recognition.
    According to the law administered by courts of equity, as it existed in New York before the revision of the statutes, and as it still exists in most jurisdictions, “an estate to A. and his heirs to his and their own use, but in trust for B.,” was an executed trust; while an estate to A. and his heirs to his and their own use, but in trust to convey to B., was an executory trust.
    This distinction still existed in New York under the Revised Statutes, a trust to convey to a third person being valid as a power in trust to dispose of lands under sections 58, 59, 74, 78, 95, of the'title on estates, while a conveyance “to the use of,” or “in trust for,” a third person, being a passive use or trust, is executed as a legal estate in that person, under sections 47-49 of the the title on estates. Wood v. Burnham, 6 Paige Ch., 514; Tallman v. Wood, 26 Wend., 9.
    A similar question arose in Edmondson v. Dyson (2 Kelly [Ga.], 307); Wiley v. Smith (3 Kelly [Ga.], 551); Loving v. Hunter (8 Yerger [Tenn.], 4); and see, 1 White & Tudor’s Lead. Cas. in Eq., pt. 1, p. 42; Sackville West v. Holmesdale, L. R., 4 H. L., 543; Roberts v. Dixwell, 1 Atk., 608; Synge v. Hales, 2 Ball & B., 507.
    These views, which I have presented as the true meaning of the statutes of uses and trusts, and of powers, in their application to the trust instrument of May 1, 1837, are clearly supported by adjudged cases.
    In Graham v. Fountain (Daily Register, Friday, Nov. 2, 1888), Judge Ingraham says: “ That the further trust contained in the deed to convey the property on the death of Clarissa E. Curtis was void as a trust but valid as a power in trust, and that the legal title to the estate in remainder (reversion) vested in Clarissa E. Curtis, the grantor.”
    If so, then the foreclosure proceedings and sale vested the whole estate in the purchaser, and so, by mense conveyances, in the defendants. See Downing v. Marshall, 23 N. Y., 366; Lang v. Ropke, 5 Sandf. (S. C.), 363; Clark v. Crego, 47 Barb., 599; Dry Dock Company v. Stillman, 30 N. Y., 174; Gilman v. Reddington, 24 id., 9; Manice v. Manice, 43 id., 364; Crittenden v. Fairchild, 41 id., 289; Kinnier v. Rogers, 42 id., 531; Skinner v. Quin, 43 id., 99; Hetzell v. Barber, 6 Hun, 534; Blanchard v. Blanchard, 4 id., 287; Ludlow v. Van Ness, 8 Bosw., 178; Cooke v. Platt, 98 N.Y., 35.
    For the purpose of the defense in the present suit, which is ejectment, it matters not whether the children of Mrs. Curtis were or were not necessary parties in order to bar the right of redemption which lien of the power in trust might give them. Neither they nor their grantees can maintain the present action unless they have the estate. A mere lien which was unforeclosed, even if it were not barred by lapse of time, would not be sufficient to enable the holder of it to maintain ejectment; his only right would be to redeem. 2 Jones on Mortgages, § 1395, and cases cited.
    
      II. The defendants are assignees of the mortgage rightfully in actual possession, and therefore ejectment will not lie against them.
    The mortgage expressly gives the mortgagee and his assigns the right to take possession in case of default. This is a power, conferred on the mortgagee and his assigns, and, as such, passes to any person who comes in as assignee under the mortgage.
    A foreclosure and master’s sale even though they be not effectual to cut off all the right's of the mortgagor or those who claim under him, are yet effectual to pass to the purchaser all the right of the mortgagee, both to the mortgage and to the mortgage-debt, and that any one to whom such purchaser conveys or any one who claims under such purchaser by mesne conveyance, becomes thereby subrogated to all the rights of the mortgagee in and to the mortgage and the mortgage debt. 2 Jones on Mortgages, § 1395 and cases cited; Freeman on Void Judicial Sales, §§ 52, 53; Jackson v. Minkler, 10 Johns., 480; Jackson v. Bowen, 7 Cow., 13; Vanderkemp v. Shelton, 11 Paige Ch., 28; Brainard v. Cooper, 10 N. Y., 356; Robinson v. Ryan, 25 id., 320; Pell v. Ulmar, 18 id., 139; Miner v. Beekman, 50 id., 337; Chase v. Peck, 21 id., 581; Hubbell v. Moulson, 53 id., 225.
    In Howell v. Leavitt (95 N. Y., 617), at the time of the foreclosure suit, Howell was dead. His title had descended to his children. The children were, therefore, the mortgagors at the time of the foreclosure suit and they were not made parties. The case was in this respect like Watson v. Spence (20 Wend., 260), and Shriver v. Shriver (86 N. Y., 575).
    _ III. Plaintiff cannot recover because the right to bring ejectment, if it ever existed is barred by the Statute of Limitations as to actions of ejectment.
    IV. Plaintiff cannot recover because his deed is void under the statute, on the ground that the lands were at the time held adversely.
    Vol. 1, Edmund’s Ed. of the Revised Statutes, page 690, § 147 (E. S., 7th ed., p. 2196), provides:
    _ “Every grant of land shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.”
    Townshend, the plaintiff, took his deeds from the Curtis children in 1886, at which date the locus in quo was in the adverse possession of the defendant, claiming a fee simple title absolute, adverse to all the world and adverse to the plaintiff’s grantees. The deeds to the plaintiff are void both under section 147 and section 1501, as well as because they were taken in contravention of section 130 of the Penal Code.
    These three section apply to all cases where the lands are “in possession of a person who claims under a title adverse to that of the grantor.” It is immaterial whether such claim is well founded or not. It is immaterial even if the title so claimed by the person in possession is manifestly unfounded.
   Sedgwick, J.

The action is in ejectment. The land in question, in 1835, was held in fee by one Wagstaff. He conveyed to one Diamond, taking from the latter a purchase money mortgage. The land then was conveyed, by mesne conveyances, to Clarissa E. Curtis subject to the mortgage. She and her husband, in 1837, conveyed to Eliza Eacey, as trustee. The decision of this case turns upon the nature of this conveyance.

The conveyance was to Eliza Eacey, “the party of the second part," her heirs and assigns, to her and their own proper use, benefit and behoof forever, but in trust, nevertheless, that the said party of the second part, and her heirs, shall receive the yearly income, rents, profits and produce of the said land and premises, and apply the same yearly, during the natural life of the said Clarissa, to the use of the said Clarissa, free and clear, etc., but to the sole and separate use of the said Clarissa, and, on the further trust, that the said party of the second part, and her heirs, shall, at the decease of the said Clarissa, convey the said lands, and every part of them in fee simple, to the children of the said Clarissa, living at her decease, and the surviving children of such of them as may then be dead, in equal portions per stirpes and not per capita, etc.

“And in case of the death of the said Clarissa leaving no child or grandchild her surviving, the said lands_ and premises shall belong to, and vest, at her decease, in fee simple to her right heirs, to whom the said party of the second part, and her heirs, shall convey the same accordingly.”

The mortgage that has been described was assigned, and the assignee of the mortgagee began a suit to foreclose it in 1837. Mrs. Curtis and her husband were made defendants. No child or grandchild of Mrs. Curtis was made a defendant. The land was sold under the judgment in the suit, and the present defendants claim under the master’s deed then given. Mrs. Clarissa Curtis died in 1886, leaving children and grandchildren.

In 1885 certain of the children and grandchildren conveyed to the plaintiff four undivided tenth parts of the land.

After the death of Mrs. Clarissa Curtis, the plaintiff began this action to recover the possession of these undivided interests.

On the trial the court directed a verdict for the defendants, and ordered the exceptions to be heard in the first instance at the general term.

The plaintiff’s counsel claims that the plaintiff has such an interest in the land that he is entitled to bring an action of ejectment.

The defendant’s counsel claims that the plaintiff has no legal interest in the land which will support ejectment.

The rule given by Chitty (1 Ch. P., 190) prevails in this state: “The lessor of the plaintiff must also have a strict legal right: a mere equitable and beneficial interest, without the legal title, will not suffice.” The note to this cites some of the cases in this state; and see, also, Moore v. Spellman (5 Den., 225); Peck v. Newton (46 Barb., 173).

The facts of this case do not admit a presumption that those under whom the plaintiff claims have received a conveyance from Mrs. Racey or her heirs, as trustees.

íhe plaintiff claims no other source of legal title than the trust deed, and that this gave his grantors legal title under the clause: “ On the further trust that the said party of the second part, and her heirs, shall, at the decease of the said Clarissa, convey the said lands, etc., in fee simple to the chileren of the said Clarissa living at her decease, and the surviving children of such of them as may then be dead.”

It may here be said that the last clause of the trust deed is to be disregarded here. It was a provision for the case of an event which now cannot occur. This event was the death of Mrs. Curtis without leaving living children and grandchildren.

The provision on which the plaintiff rests as giving a legal title to his grantors, in reality gives a power in trust. It gives authority to the trustee to do what might be lawfully done by the grantor of the power, that is, to convey. 2 R. S., 732.

And in case of such a trust (§ 59), the lands to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power. As the trust has not been executed by conveyance, as directed, Mrs. Curtis remained entitled in fee, and that fee was foreclosed in the foreclosure suit already referred to, and has been transmitted to the defendants under the master’s deed. It is also true that Mrs. Curtis’ fee was subject to the estate of the trustee for the life of Mrs. Curtis. The trustee was a party to the foreclosure. This, however, does not affect the nature of the interest of the grantors of ' plaintiff.

It is not necessary to examine the cases which counsel for defendant have cited. They apply the provisions of the Revised Statutes on the subject, and are so clear in expression that they do not call for construction. It is proper to look at the cases on which the counsel for plaintiff relies.

The fundamental proposition made by plaintiff is, that the trust in question is merely nominal, or is such a trust that equity will execute it by deeming the conveyance made, even although it has not been made.

As to this it must be said, that the statute keeps the trust in existence as an express trust, as completely as if it were an express trust of that kind, in which the trustee validly becomes possessed, of the fee, so far as the purposes of the trust require. (58) The statute declares that it is valid as a power in trust, and, if it is valid, it is to be executed in the manner that the grantor designates.

Section 113 explicitly states, that “No power can be executed, except by some instrument in writing, which would be sufficient in law to pass the estate or interest intended to pass under the power, if the person executing the power were the actual owner.”

It cannot be said that law or equity in giving due consideration to the trust, can repeal the statute. At common law the rule was the same, and the execution of a power implied the occurrence of the event, or the doing of the act which is the condition of the springing into existence of the future use intended by the grantor. The cestui que trust takes no estate by the trust deed, but he will have an estate according to the act done, and appointment of the use. When that act is done, then, and not until then, is the rule to be applied that the appointment relates back to the deed of the grantor of the power. 4 Kent (13th ed.), 316; 2 Sug. on Row.,. 23; Duke of Marlborough v. Lord Godolphin, 2 Ves., 61.

The counsel for plaintiff cites Downing v. Marshall (23 N. Y., 366) and N. Y. Dry Dock Co. v. Stillman (30 N. Y., 174). It seems to me that they do not confirm the position of plaintiff. In the latter case, according to the opinions, there was declared a trust to sell lands for the benefit of one Smith and his associates, or to sell lands and divide the proceeds among Smith and his associates. The question was whether, thereby, Smith had a legal interest in the proceeds, the lands having been sold. Judge Mullir said that the interest that Smith acquired under the trust was an equitable title to-enforce the execution of the power and the sale of the land, for an account and distribution of the proceeds.”

Judge Selder said: “ It is clear therefore that Smith had no title to the lands in question under section 47, ‘ as the beneficiary of the trust attempted to be create.’ Judge Selder had cited Downing v. Marshall (supra), for the purpose, in following that case, of saying that section 47 refers exclusively to a class of passive trusts, when the immediate possession and whole beneficial use of the land is given directly to the cestui que trust.”

In view of what is the exercise of a power, it cannot be said that until that power is exercised the cestui que trust has a right to immediate possession.

In Parks v. Parks, 9 Paige, 107, I cannot find anything that is relevant to a trust which by the statute is valid as a power in trust. Nor is Nicoll v. Walworth, 4 Den., 385, to be applied to an existing unexecuted power in trust, as it is substantially a case of a trustee whose only trust is to allow to others the possession and use of land.

Welch v. Allen, 21 Wend., 147, was an action of ejectment. The plaintiff was the heir of one John Welch. Commissioners of the land office, in pursuance of an act of the legislature, had issued a patent to T., in trust for John Welch and his heirs and assigns with a provision that T. should •dispose of the land and apply the proceeds to the support’ of John Welch and family, and “after his decease pay the residue, if any there be, to his legal representatives. ” After the decease of John Welch, certain of the lands remained unsold. As to these the plaintiff, heir of John, recovered an ejectment on the ground that the trust to sell and pay the proceeds ceased with the death of John, and that then as to the unsold land, T. was but a nominal trustee, the use being in the heir, and the Revised Statutes executed such a trust. In reality the document provision was a general trust to J. W., and his heirs. This would, if not varied, be a conveyance to the use of J. W., and his heirs, and the only modification of this was that something might be done by the trustee during the life of J. W., and at his decease his heir received the land under the provision of the general trust. The authority of this case is to a certain extent affected by an explanation of its statement of facts in Welch v. Silliman, 2 Hill, 491. The cited case does not ■show that the trustee of a power to convey has not an active duty imposed upon him, that is to convey. If such were not his duty, and if the law executed it, the result would be an estate at law. And then equity would not compel, as it has the right to compel, the execution of the power, for being executed at law, equity would have no jurisdiction.

In the Matter of the Petition of Livingston (34 N. Y., 559), the conveyance was by William Winter to one Bird-sail, as trustee, to receive the rents and profits to the use of Winter during his natural life, and upon the death of Winter to assign, transfer and convey, etc., in the manner following: that is to say to the lawful issue of Winter living at the time of his death according to the rules presented by the statute regulating the descent of real property, and in case of Winter dying without leaving him surviving any such lawful issue, then upon the further trust, to assign, transfer and convey to his nephews now living.

There were here, if the views that have been given are right, an express trust for the life of William Winter, and for that the fee went to the trustee, and a valid power in trust, namely, a power to convey to the issue, in which case, if issue survived without William Winter having conveyed the fee, such issue would have the fee, and also be entitled to have the power executed, and also a valid power in trust to convey to nephews, if issue of Winter had not survived.

In Winter’s lifetime, he not having issue, the nephews made petition for the removal of the trustee. The court finally held that they could not maintain such a proceeding, whatever was the "nature of their interest. Before .the court announced this, it passingly said that as Winter had no children, ‘1 it may perhaps be assumed that the nephews in question take a vested remainder under our statute.” The court then said, “so far as the deed creates a trust in Birdsall to receive the rents and profits and apply them to the use of William Winter during his life, it is expressly authorized (1 R. S., 728, § 55) by statute. So far as it requires the trustee to convey the legal estate to those who-shall be entitled in remainder under the trust deed, his services will be useless, as the transfer will be made, if at all, by operation of the statute of uses, and his office will then, terminate. 1 R. S., 730, § 67.”

It is not clear whether it was meant that the trustee’s-conveyance would be useless because the nephews were entitled in remainder without the trustee-executing the power, or that the trust deed intended to give a remainder, and the execution of the conveyance was merely ceremonial. I think it was an inadvertence to say that the terms of' the trust deed gave a remainder or a use to the nephews.

The whole estate, so far as it was necessary to accomplish the purposes of the trust, was given to the trustees and not to the cestuis que trust, and so far as the trust existed as a valid power in trust, neither the trustee had any estate, or the nephews as cestuis que trust had remainders, but the whole estate of inheritance was in William Winter, subject-to the estate for his life in the trustees. At Winter’s death, if it be supposed that the nephews would be his heirs, they would get the fee by inheritance and not by the trust deed. I am of opinion that, as an exact estimation of what the nephews took under the power in trust in the trust deed was not necessary to the decision of the case, the remarks of the court were not intended for more than an assumption favorable to the petitioners, as to their interests in the lands, with the result, that even on that assumption they were not entitled to take proceeding in Winter’s life-time.

In Williamson v. Field (2 Sandf. Ch., 533) it is said: “The direction that the trustees are to convey the property to the issue of Clarke living at his death, in no manner affects the point. Tho issue would be deemed in equity as having the-whole interest upon the death of Clarke, without any regard to a conveyance of the legal title. And the objects of the-trust having been accomplished, the estate would now beheld a legal estate in those entitled under the will.” 1 R. S., 727, §§ 47, 48; id., 729, § 61.

I do not proceed to examine this case particularly, for any inference from it that might be deemed favorable to plaintiff’s position is opposed by the later case of Wood v. Mather (44 N. Y., 249), which specifically approved the opinion delivered in that case in the general term. 38 Barb., 473. The trust was to pay the rents and profits to I. during her life, and after her death to convey to such of her children as should survive her. Both courts held that this trust was not executed as a legal estate in the surviving children, either by the Revised Statutes or the former Statute of Uses. It was considered that the duty to convey was an active duty, and the children were intended to take the uses through the conveyance.

Rothing was said about a power in trust, but the decision really concerned such power.

I therefore think that the plaintiff had no legal interest in the land that entitled him to maintain ejectment. If he did not have a legal interest, it is not necessary to inquire-if he had an interest of another kind, and then to ascertain its characteristics. This result makes it unnecessary to-examine other questions made by the case.

The plaintiff’s exceptions should be overruled, and judgment entered on the verdict, with costs.

O’Gorman, J., concurs:  