
    Morris Fisher et al., Pl’ffs, v. Ellen H. Wilcox, as Executrix, etc., Def’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 13, 1894.)
    Specific pebfobmahce—Title.
    Where the power of the trustee to convey an estate in fee simple is doubtful, the purchasers will be relieved from the performance of their contract of purchase entered into with such trustee, and not be required to take the title tendered.
    Submission of controversy on an agreed state of facts, pursuant to § 1279 of the Code.
    
      David Leventritt, for pl’ffs ; Vanamee, Watts & Vail, for def’t.
   Follett, J.

The testator, by his will,"did not convert or attempt to convert his realty into money, out arid out, but the title to the land, assuming the devise to be valid, passed to the trustees, with power to convert it into money, invest the proceeds, and apply the income therefrom. By the will the trustees have power to hold the realty, and apply the net rents as directed, until the death of Edith G. Polhemus, when they are directed to convey the naked title to her children, subject to the right of the trustees to apply the net rents for the benefit of the life annuitants and legatees. The children of Edith 0." Polhemus are not given the power of alienation until after the death of all of the cestuis que trustent. By the fifth clause of the will the trustees are empowered, not directed, to sell' the realty whenever they deem it most judicious for the interest of the devisees and legatees, invest the proceeds, and apply the income for the same purpose that the rents of the realty are directed to be applied. It is very clear that the testator attempted to authorize the trustees to hold the land in trust, in their discretion, until after the death of all of the annuitants, and until after the payment of the $4,000 legacy, and thus suspend the power of alienation for more than two lives in being at the death of the testator. The interests of the cestuis que trustent in the rents of the realty, and, in base it is sold, in the income to be derived from the proceeds of the sale, are not merely successive, one cestui que trust taking after the death of another, but they are concurrent as well. In this case the heirs of the testator are not before the court, nor are the cestuis que trustent, except as they are represented by the trustees, nor are the devisees of the remainder, except as so represented; and without their presence we do not think this court should authoritatively determine their rights, and ■we simply hold that the power of the trustees to convey an estate in fee simple is so dbubtful that the purchasers should not be required to take the title tendered. In Abbott v. James, 111 N. Y., 673; 20 St. Rep. 230, and Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep. 15, the court of appeals held that, when the validity of the title in question is doubtful, even that court ought not to determine it, and compel an acceptance of the title, in the absence of and without hearing the heirs at law whose rights depend on the same question. This judgment was followed in this department in Alkus v. Goettmann, 60 Hun, 470; 39 St. Rep. 576. The decision of the court of last resort is binding by way of estoppel only on parties and their privies, but on persons not parties nor privies only on the rule of stare decisis, and the decision of this court would not be binding upon that principle on the court of appeals; and we think, although we are not in much doubt about the question presented, that we ought not to go further than to decide that the purchasers ought not to be compelled to take the title tendered. Submissions between executors and purchasers relating to the validity of devises have become quite common in this court. The heirs at law of testators in such cases (often infants) are not parties to the submission, are not heard, and their rights ought not to be determined, and, in case of doubt, the purchasers ought not to be required to take title. In some cases which have been submitted, though not in this, we have had reason to believe that the contract of sale made, arid the submission entered into, were for the purpose of securing an adjudication on the questions submitted, without the heirs and the other persons interested having an opportunity to be heard. A judgment should be ordered in favor of the plaintiffs, that they be relieved from the performance of their contract of purchase, and that they recover from the defendant $1,000, with interest from June 13th, 1893, with the costs of this action. All concur.  