
    Harold Sturges Rankine, Appellant, v. Julius I. Metzger, Respondent.
    
      Trust—power in trust in real property to continue during two minorities coupled with a power of sale title, where vested—effect of a sale during the trust Try one of The persons entitled to a share of the real estate on the termination thereof— right of d purchaser from the-trustee —right of a beneficiary to act as trustee.
    
    The will of a testatrix provided: “All the rest, residue and remainder of my property and estate:, real and personal of every nature and kind and wheresoK ever situated to my husband Garret L. Schuyler and tny son Jacob Miller' [ Schuyler in trust for the execution of this my will, with power to sell and dispose of the same at public or private sale, at such times and upon such terihs. ..as to them shall seem meet, and to invest and reinvest the same and tó receive-the rents and profits thereof and to apply the same as follows: To pay all the-rents, profits and income thereof until the two youngest of my children me-surviving or the survivor of them shall attain the age of twenty-one years to my husband Garret L. Schuyler to be used by him towards - his own-support and maintenance and the support and maintenance and education -of iny children me surviving as to him may seem meet free from the payment of his-debts; and then when the two youngest of my children me surviving or the-survivor of them shall attain the age of twenty-one years, or in case neither of said children shall attain the age of twenty-pne.years, then upon -the: death of' the latest surviving of them -to-divide the said rest, residue and remainder of' my estate share and., share alike equally among my children me surviving and. •my said husband Garret L. Schuyler, except as hereinafter provided., In case of the death of any óf my said children leaving no heir or heir's of his, her or their body, him, her or them surviving) or of my said husband before the distribution of my estate as herein provided for, then the share which would otherwise had he survived have fallen to my said husband and the (shares) shares which would have respectively fallen to my said children so deceased had they survived shall be equally divided share and share alike as herein-before provided for the distribution of the rest, residue and remainder of my property.”
    The testatrix died March 1,1880, leaving surviving her husband and nine children. All of such children survived the testatrix’s husband, who died April 20, 1889.
    April 1, 1890, Jacob Miller Schuyler, as surviving trustee, sold a parcel of real estate which passed under the residuary clause. The youngest child of the testatrix became of age in 1892, at which date all of the nine children were still living. Thereafter, in 1896, an execution was issued upon a judgment obtained against Jacob Miller Schuyler May 12, 1888, under which the sheriff assumed to sell all of the right, title and interest which Jacob. Miller Schuyler was seized or possessed of on the day of the entry of the judgment, or at any time afterwards, in the real estate sold by him as surviving trustee.
    In an action brought by the purchaser at the execution sale, against a person claiming under the deed executed by Jacob Miller Schuyler as surviving trustee, to recover an undivided one-ninth part of the premises,
    
      Held, that the W'ill created a valid trust which survived the death of the testatrix’s husband and continued until the youngest of the testatrix’s children attained the age of twenty-one years, or the death of the survivor of them;
    That if the will created merely a power in trust, the title to the property vested in the children of the testatrix immediately upon the latter’s death, subject to be divested by the execution of the power of sale by the trustees; and a judgment recovered against one of the eestuis que trustent became a lien upon his interest in the real estate, and a sale under such judgment would carry with it the legal title to such interest as long as the power of sale remained unexecuted; that upon the execution of the power, the lien of the judgment.and the title conferred by the conveyance would cease and determine, and the lienor or purchaser would be relegated to the proceeds of the sale under the power in trust, and the purchaser from the trustee would obtain a good title, freed from any lien, incumbrance Or cloud;
    That, if the will should be construed to create an express trust, the title to the real estate became vested in the trustees, and the lien of the judgment against Jacob Miller Schuyler would not attach thereto;
    That as the trust was not severable, and as Jacob Miller Schuyler had undoubted authority to convey the interests of all the other eestuis que trustent, the fact that he was also a beneficiary did not deprive him of the power to execute the pow-er of sale, and that the purchaser under the sale made by him as surviving trustee acquired a good title to the whole of the premises.
    Appeal by the plaintiff, Harold Sturges Rankine, from a judgment of the Supreme Court in favor of the defendant, entered in :the office of ' the clerk of the county of New York on the. 11th day of February, 1901, upon the decisión of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint. •
    
      Eustace Conway, for the appellant.
    
      John Larkin, for the respondent.
    
      
      
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   Hatch, J.:

The action is in ejectment and seeks to recover an undivided one-ninth part of the premises described in the complaint. The rights of the respective parties depend upon the construction to be. given to the will of Mary E. Schuyler, who died seized of the premises March 1, 1880, and the .power and authority of. the trustees appointed thereunder.

After making provision for the management and control of her interest in the business of Miller, Schuyler & Co., and bequests of certain personal property to various persons, the will provides: “All the rest, residue and remainder of my. property and estate, real and ■personal of every nature and kind and wheresoever situated to my husband Garret ■ L. Schuyler and my soil Jacob Miller Schuyler in trust for the execution of this my will, with power to sell and dispose of the same at public ór private sale, at such, times and upon euch terms, as to them, shall seem meet,, and to invest "and reinvest the same and to receive the- rents and profits thereof and to apply, the same as follows : To pay all the rents, profits and income thereof Until the two youngest of my children me surviving .or the survivor of them shall attain '¡the age of twenty-one years to-my husband Garret' L. Schuyler to be used by him towards his own support and maintenance and the support and maintenance and education of my children me surviving as to him may seem' meet free from the payment of his debts; and then when the two youngest of my children, me surviving or the survivor of them shall attain the age of .twenty-one years, or in case neither of said children shall attain the age of twenty-one years, then upon the death of the latest surviving of theni to divide thé said rest, residue and remainder of my estate share and share alike equally among my children me surviving and my said husband Garret L. Schuyler, except as hereinafter provided. In case of the death of any of my said children leaving no heir or heirs of his, her or their body, him, her or them surviving, or of my said husband before the distribution of my estate as herein provided for, then the share which would otherwise had he survived have fallen to my said husband and the (shares) shares which would have respectively fallen to my said children so deceased had they survived shall be equally divided share and share alike as hereinbefore provided for the distribution ■of the rest, residue and remainder of my property.”

The other provisions of the will do not affect any question involved in the present action. Upon the death of the testator, both trustees qualified and entered upon the execution of their trust. At the time of the death of the testator she had nine children, all of whom survived the trust period provided in the will. After the death of the testator, and on May 12,1888, a judgment was obtained and duly docketed against the son, Jacob Miller Schuyler. Garret L. Schuyler, the husband, died April 20, 1889, leaving him surviving all of the children and J acob Miller Schuyler, the sole surviving trustee. The trust period came to an end by the coming of age' of the youngest child in 1892. On April 1, 1890, Jacob Miller Schuyler,. as sole surviving trustee, sold said property,; and the defendant in this action has succeeded to title by a conveyance from such trustee’s grantee. Snbsequóntly an execution was issued upon the judgment against Jacob Miller Schuyler, which resulted in a sale on the 21st- day of September, 1896, the sheriff assuming to sell all the right, title and interest of the defendant Jacob M. Schuyler, of which he was seized or possessed on the day of the date of the entry of the judgment or at any time afterwards, in the property, the subject of this action. At such sale the plaintiff became the purchaser, and thereafter the sheriff executed and delivered to him a deed in pursuance thereof, and under such deed the plaintiff claims title to a ninth undivided interest in these premises.

We are of opinion that by the provision of the will above quoted a valid trust was created which would continue until the youngest of the two children mentioned therein should come of age unless both should sooner die. It is evident from the language employed that the trust period was not limited to the life of the husband. He is given from the trust estate the rents, profits and income for his support and maintenance, and" for the support and maintenance and education of the children. Two purposes are clearly contemplated ; first, the support and maintenance of the husband; and, secondly, the support,, maintenance and education of the children There is no provision in the will for the termination of the trust, except upon the arrival of age of the youngest child, or on the death of both, when the direction is, upon the happening of either contihgency, to distribute and divide the estate among those entitled thereto. That the trust provision was intended to survive the death of the-husband is made manifest by the fact that provision is made respecting the share that would be distributed to him if he survived and its disposition if he died. The fact .that during..the lifetime of the husband he was to receive the rents, issues and profits and make distribution of the same, does not limit or control the. trust provision nor its duration, nor deprive the children during such period of support, maintenance and education from the income ; nor did the right thereto depend upon the life of the husband. The right of the children to such portion as . was necessary for the purposes, mentioned was as absolute as was.the right of the husband, and continued until the termination of the trust period. It is evident, therefore, that the "trust survived the death of the husband.

The trust,, considered merely as a power which was vested" in the trustees, treated as such, did not carry with it the legal title. Upon the death of the testator, the title to the real property became immediately vested in the children of the testator in undivided interest, subject, however,’ to be. divested by. the execution of the power of-sale by the trustees. (Cussack v. Tweedy, 126 N. Y. 81.) As such it became subject to the lien of a judgment recovered against the cestui que trustent, and a sale made thereunder carried with it a legal title to the land so long as the power of sale remained unexecuted. Upon the execution of the power, however, the lien of the. judgment, or a conveyance pursuant to a sale thereunder, will cease and determine, and" the lienor or purchaser will be reler gated to the proceeds of the sale in the execution, of the power, and. a purchaser from the trustee obtains a good title freed of any lien, incumbrance ór cloud. (Sayles v. Best, 140 N. Y. 368; Ackerman v. Gorton, 67 id. 63.)

If the will be construed as creating an express trust, as this trust evidently is, then title became vested in the trustees, and the lien of the judgment would not attach. In the view we take of the case, it is not now necessary to determine whether the trustees took an estate or a power.

The surviving trustee exercised the power of sale under the will prior to the termination of the trust period and long before a sale was had under the judgment. It follows, therefore, that as the trust provision was good, if the surviving trustee had the power as such to make the sale, the defendant obtained a good title to the premises, freed of the lien of the judgment, and a sale thereunder conveyed no title or interest of any character. Whatever right the lienor had was a claim upon the proceeds, and nothing else.

It is a general and well-settled provision of law that the office of trustee and beneficiary may not be united in the same person, as the two interests are incompatible. (Rogers v. Rogers, 111 N. Y. 228; Woodward v. James, 115 id. 346.) It has not yet been decisively determined, however, whether a trust provision, otherwise good, would be defeated by this conjunction of interest. The Supreme Court is vested with power to appoint a person to carry out a good trust provision, where a surviving trustee of an express trust has died, and much reason exists for holding that the court may exercise the power to prevent the failure of a good trust provision, which may be incapable of execution by reason of the conjoined interests of the trustee. (Losey v. Stanley, 147 N. Y. 560.) But however this may be, it is clearly the law that where two or more trustees are appointed to execute a trust, and one or both is under the infirmity of being a beneficiary, neither the trust nor its execution fails, as each may act for the other where disqualification exists, and all can act with respect to that portion of the property in which they have no interest. (Rogers v. Rogers, supra.)

The trust provision, therefore, in this case was valid in its inception and so continued to the end of the period, for, if Jacob Miller Schuyler was under a ban by reason of his interest as beneficiary, the trust continued and the only infirmity, if any, lay in its execution. Unless there be words contained in a will which limit the execution of the power to the joint action of a certain number of trustees the death of one does not defeat the execution of the trust, but such power becomes vested in the survivor. Such is the provision of the statute. (3 Birdseye R. S. [2d ed.] 3371, § 45; House v. Raymond, 3 Hun, 44.) It has been held'that a person who was a beneficiary under a will might be appointed to Execute the power where for some reason the trustee named was disqualified. (People ex rel. Collins v. Donohue, 70 Hun, 317.) In Rogers v. Rogers (supra) a like power was' executed through a disqualified trustee, so disqualified by reason of interest. . It is true that in that case the Supreme Court assumed jurisdiction and control of the trust estate and ordered a reference to take proof respecting it, but the act itself was. done by the trustee, and it. was held to be proper and validated the transaction. In Losey v. Stanley (supra) the court said : “We have no doubt that the appointment of the beneficiary as trustee by the court, on the death of resignation of the testamentary trustee^ does not extinguish the trust.” The incompatibility of such a relation would seem to be quite as strong when created by the court as when created by the testator, the only distinction which is apparent being that the court under such circumstances' may supervise the acts of the trustee, but all trustees are subject to the same supervision.

It is clear, we' think, beyond controversy that this trust provision was perfectly valid, both in character and in instruments for its execution. . The trust itself is not. severable; it is one and indivisible. The surviving trustee had clear authority to execute the trust, provision as to eight ninths of the trust property, and in this respect he was subject to no infirmity whatever. The authority was to sell the whole interest. The trustee could no more- save out his own share from passing under the execution of the. power than he could the interest of any other child, and if he sought to make severance he could -not do it, as the interest of each would be equal to his own in the part reserved. As the trust was good in its inception and was indivisible, the partial interest of the trustee, we- think, may not intervene to defeat its execution, and upon the death of his cotrustee the power was properly executed and conveyed good title. The Code provision (§ 2818) seems to cover such a cáse and furnishes authority for the execution of the trust. ' The acts of the trustees in making their prior conveyance and obtaining the reconveyance,, or their other acts, do not affect any question presented by this case, and it is, therefore, not necessary to refer to them.

If these views be sound, it follows that the judgment should be affirmed, with costs.

Patterson, Ingraham and Laughlin, JJ., concurred.

Van Brunt, P. J. (concurring):

...I concur in the result of the opinion of Mr; Justice Hatch, but I dissent from any interpretation of this will that any power in trust was created or existed prior to the year 1892, when the youngest child became of age. Prior to that time the trustees named in the will and the survivor of them were such under an express trust, having power to sell the real estate, to invest the proceeds of the same, and to collect the rents, income and profits of said-real estate and of the proceeds when reinvested, until the two youngest children of the testatrix'- should attain-the.age of twenty-one—which-event occurred in 1892. The deed executed by the surviving trustee,. Jacob M. Schuyler, was executed in April, 1890, while he was-invested as trustee of an express trust with the title to the property. Under these circumstances there is no possible room for construing the will of Mary E. Schuyler so as to hold that Jacob M. Schuyler at the time of executing ■ this deed was the donee of only a power in trust.

It is clear that the trust created by the will is an express trust when we examine the provisions of section 55, chapter 1, part 2 of the Revised Statutes (Edmonds’ ed. *729). That section reads as follows: “ Express trusts may be created for any or either of the-following purposes : 1. To sell lands for the benefit of creditors : 2. To sell, mortgage or lease lands for the benefit of legatees or for the purpose of satisfying-any charge thereon :'3. " To receive the "rents and profits of lands and apply them to the use of any person during the life of. such person or for any shorter term, subject to the rules prescribed in the first article of this title:. 4. To receive the rents and profits of lands and to accumulate the same for the purposes and within the limits prescribed in the first article of this title.”

Under the will in question the trustees were given the right to sell the real estate for the benefit of the legatees mentioned in the will, and also to receive the rents, issues and profits of the lands and apply them to the use of the persons named in the will, thus creating an active express trust.

Section 60 of chapter 1, part 2 of the Revised Statutes reads as follows : “ Every express trust, valid as such in its creation, except as herein otherwise provided, shall vest the whole estate in the trustees, in law and in equity, subject only to the execution of the trust. The persons for whose benefit the- trust is created, shall take no estate or interest in the lands, but may enforce the performance of the trust in equity.”

. The exceptions which are mentioned. in the statute in no way apply to the case in question. One in particular is contained in section 56, and is worthy of note because it expressly recognizes that under the conditions which were created by the will in question the title is in the trustees. This section reads as follows : “ A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs,, or pass to the devisees of the testator, subject to the execution of the power.” Hence, by the fact of the trustees being empowered to receive the rents and profits of the lands, it is. clear that they were invested with the whole title, and the remaindermen took no estate or. interest in the lands.

Section 58 reads as follows: Where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the. trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title.”

When we consider these provisions of the statute, there "does not seem to be room for any assumption that an. express trust "was not created under which the. whole , title to the real, estate was vested in the trustees, and the persons ■ beneficially interested took no interest or estate in the lands until aftér the termination of the trust, which event did not occur until after the conveyance in question.

Patterson and Laughlin, JJ., concurred.

Judgment affirmed, with costs. 
      
      
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