
    Charles B. Hald and Others, Appellants, v. Joseph H. Claffy and John J. Kiley, as Executors, etc., of Joseph Lawson, Deceased, Respondents.
    Second Department,
    March 19, 1909.
    Beal property — specific performance of testator’s agreement to convey — when widow and heirs not proper parties defendant.
    In a suit against testamentary trustees to compel the specific performance of their testator’s contract to sell lands, the widow and heirs should not be brought in as parties defendant, where the will placed the property in trust, income to the widow and the testator’s daughter for the former’s life, at her death, the property to be' sold and the proceeds divided among the testator’s children, if with her consent the trustees are prepared to give title to the widow’s dower.
    This, beca,use under the express trust the trustees took title, and whether the property be considered as real estate or as having been equitably converted into personalty by the contract of sale, the trustees being also executors, had a right to carry out the testator’s contract and to accept the agreed price.
    Appeal by the plaintiffs, Charles B. Hald and others, from an ' order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of December, 1908, denying the plaintiffs’ motion ' to amend the summons and complaint to make the widow and heirs at law of Joseph Lawson, deceased, parties defendant in an action for the specific performance of a contract to sell real property*
    
      Edward J. Reilley, for the appellants.
    
      Earl A. Darr, for the respondents.
   Woodward, J.:

On the 31st day of January, 1908, Joseph Lawsón entered into a contract for the conveyance of certain real estate situate in the borough of Brooklyn to; one Joseph Péttit,: assignor of plaintiffs, and pn the following day he departed this life, leaving a. last will and testament, by the terms.of which, after various specific bequests, h¿ conveys to his executors (l all the rest, residue and remainder of my estate, both real, personal and mixed/’ in trust for the purpose of providing an income of sixty dollars per month to his widow, with an additional provision for an income of twenty dollars ¡Dor month for his daughter, during the life of his widow, and upon the latter’s death the trust is to terminate, the property is to be sold, and the proceeds divided among his children.. The plaintiffs claim that the legal title to, the real estate involved is in the widow and heirs at law, and that, while the executors have tendered a deed of the premises, in accord with the terms of the contract of January thirty-first, this would not serve to give them good title. We think the learned court at Special Term has properly denied the motion; the executors take the title to the testator’s property as trustees under the express trust, and whether it be considered as real estate, or as having been converted into personalty through the operation of the. contract of January 31,1908, under the general rule prevailing in such cases (Williams v. Haddock, 145 N. Y. 144, 150), can make no possible difference. The legal title to the estate, whether consisting of real estate, personal or mixed, vests in the. trustees, subject only to the right of the beneficiaries to enforce the trust, and the executors and trustees have a perfect right to carry out the contract of the testator, and to accept the price agreed upon, constituting this a part of the trust fund. Neither the widow nor the heirs at law have any interest in this real estate, as such, with the exception, of course, of. the widow’s dower, and as. to this the defendants allege in their answer that they are prepared to give a full title, which could be done, of course, with the consent of. the widow. Indeed, with the exception noted, they have no interest in the property during the lifetime of the widow; it is vested in the trustees subject to the right of the beneficiaries to have the trust enforced. Having no legal interest in the property they could not be necessary parties in an action for specific performance, and the order appealed from is, therefore, right and proper.

The order appealed from should be affirmed, with costs.

Jenks, Gaynor, Burr and Rich, JJ., concurred. .

Order affirmed, with ten dollars costs and disbursements.  