
    
      In re Christie et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 18, 1891.)
    1. Powers in Trust—Execution.
    Testator devised his estate to his wife, as executrix, in trust for the payment of debts, “with power to sell and dispose of the same. ” Meld, that as no authority to receive rents and profits was given to the executrix, no estate in the land passed to her, hut she took a mere power in trust, under 1 Rev. St. N. Y. marg. p. 729, § 56; and, she having died without executing it, its execution was not to he assumed by the court osa trust, but devolved upon the administrator of the devisor with the will annexed. Following Mott v. Ackerman, 92 N. Y. 539.
    2. Wills—Trusts—Perpetuities.
    Testator devised part of his estate to his children in fee. By a subsequent clause of the will, he devised the same property to a trustee, with power of sale, for the payment of debts; and by a further clause directed that no part of said estate should be sold until all of his children arrived at the age of 21. At the time of testator’s death there were five minor children. Held that, the devise to the children being subject to the payment of debts, the restriction of the power to sell for that purpose, until the majority of the youngest, was a suspension of the absolute power of alienation, under 1 Rev. St. N. Y. marg. p. 723, § 15, beyond two lives in being, and therefore void.
    Appeal from special term, Washington county.
    Petition by George Christie and John Christie for the appointment of a trustee-under the will of Oliver Butterfield, deceased, in the place of a deceased trustee. Petitioners were creditors of George Christie, deceased, and the object of their application for the appointment of a trustee was to obtain the execution of a power of sale, conferred upon the executrix in the will of said decedent, to provide funds for the payment of his debts. The will first directed the payment of testator’s debts, and then devised one-third of his estate to his wife in fee, and the rest to his children and grandchild, and appointed his wife executrix, and his son Duane executor. He then gave and devised all his real and personal estate to his wife, Bhoda, in trust for the payment of debts and legacies, with power to sell and dispose of the same at public or private sale; provided, however, that no part of his real estate, as aforesaid, should be sold until each and all of his said children should have arrived at the age of 21 years. The said Oliver Butterfield left little or no personal property except his farming stock and tools, of little value, and no inventory of any personal property was filed in the surrogate’s office. But he left the real estate described in the petition. At the time of his death he was indebted to and owing the petitioners the sum of $800, or thereabouts. This debt was for money loaned and advanced by them to him, and was in the form of a note signed by him, and an account against him. After the death of the said Oliver, Duane and Bhoda Butterfield, executor and executrix under the will, executed and delivered to the petitioners a note for the debt and interest, on which petitioners afterwards obtained judgment. Bhoda Butterfield, the widow of Oliver, and the trustee named in the will, died on or about the 29th day of July, 1887. The petition sets forth the names of the persons interested in the real estate therein described, and asks for an order appointing some suitable person as trustee in the place of the said Bhoda. This petition was noticed for hearing at special term, and was opposed by Fred R. Butterfield as a purchaser of part of the real estate described in the petition, and by Andrew Minton, who also claimed to be a purchaser from the heirs at law of Oliver Butterfield of a portion of the said real estate. The said Fred B. Butterfield and Andrew Minton appeal from an order appointing a trustee in the room and stead of Bhoda Butterfield, deceased, to perform and execute the trust for the payment of debts,contained in said Oliver Butterfield’s will.
    Argued before Learned, P. J., and Landón and Mayham, JJ.
    
      Young & Kellogg, (A. D. Arnold, of counsel,) for appellant. Job &. Sherman, (Matthew Hale, of counsel,) for respondent.
   Learned, P. J.

Oliver Butterfield died July, 1868. By his will he gave one-third of his estate, real and personal, to his wife, Bhoda. He gave the rest and residue, real'and personal, to his eight children and one grandchild, equally,- except that one daughter was to have half of the amount which otliers had. The legacies were to be paid within a year after the youngest child became 21. He made his wife executrix, and his son executor. He then continued: “I give all my real and personal estate of every kind to my wife, Bhoda, executrix, * * * in trust for the payment of my just debts, and the legacies above specified, with power to sell and dispose of the same.” As there was no authority given to Bhoda, executrix, to receive the rents and profits, no estate passed to her. But this trust was valid as a power,- and the land passed to the devisees subject to the power. 1 Bev. St. marg. p. 729, § 56. Therefore the title to the land vested at once in the devisees named in the will, and all which Bhoda, the executrix, took was a mere power in trust, which enabled her to sell the land and apply the proceeds. She had no estate as trustee. As to the one-third w'hich was devised to her, she could sell and convey that as owner. She held that power in trust as a part of her authority as executrix, not as any independent power. There has been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining, 8 Paige, 296; for the matter has now been definitely settled by Mott v. Ackerman, 92 N. Y. 539, at pages 553, 554. It is there held that such power belongs to the office of executrix, and passed to the administrator with the will annexed^ This decision is a construction of 2Rev. St. marg. p. 72, § 22, defining the power of administrators with the will annexed; and, thus construed, that section must constitute a practical exception to the-general rule that, on the death of a trustee, the trust or the power in trust vests' in the supreme court. 1 Rev. St. marg. p. 730, § 68; Id. p. 734, § 102. Hence it follows that, if there be any power in trust under this will .yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust, not connected with the office of executor. On the contrary, if this power be still in existence, it belongs to the office of the executor. And as the executrix is dead, it must be executed, if at all, by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty.

There are some other difficulties in this case, and we do not intend to decide whether the petitioner is or is not entitled to relief in any court. It is enough to say—First, that this is a mere power in trust which conveyed no estate to the executrix, Bhoda; second, that the jfower, as it is given to pay debts and legacies, and especially as real and personal estate are mingled; belongs to the office of executor, and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and, fourthly, that for these reasons it is not for the court to appoint a trustee of the power, and thus to separate it from the office of executor. Whether these petitioners can show themselves at this late day to be creditors of the deceased, and can obtain the appointment of an administrator with the will annexed, we do not decide. 2 Bev. St. marg. p. 74, .§ 27. There has been great delay. It does not appear "precisely when the will was proved. But it is averred that the deceased left personal property worth over $1,000, which, of course, would be the first fund for the payment of the-debts. The executrix died July 29, 1887, and the heirs of the deceased have sold some of the land.

There is another point which should be considered. The will of the deceased provides that no part of his estate shall be sold until all of his children arrive at 21. At his death five were under that age. Therefore the trust power could not be executed until these five had arrived at 21. The estate of the devisees was subject to the trust power, so that they could not convey a clear title until the five minors had reached 21. In Henderson v. Henderson, 113 N. Y. 1, 20 N. E. Rep. 814, at page 15, 113 N. Y.,.and page 818, 20 N. E. Rep., it was held that a clause that executors having a power should not be compelled to make partition, etc., until five years from probate, did not suspend the power of alienation; for it was said that the power of sale was not suspended when the executor was merely permitted to delay. Robert v. Corning, 89 N. Y. 225. The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension, to be valid, may not be beyond the two lives limited by statute. 1 Bev. St. marg. p. 723, § 15. The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Section 14. Now, the executrix cannot execute the power until the majority of the five minors, and until that time the conveyance of the devisees would be liable to be defeated by the subsequent execution of the power. Hence the power does suspend the absolute power of alienation until that time, and is therefore void. The order should be reversed, with $10 costs and printing disbursements, and motion denied, with » $10 costs. All concur.  