
    John Schreyer, Plaintiff, v. Isabella Arendt, Defendant.
    
      Submission of a controversy — dismissed where persons whose presence is necessary to a decision of the question of title submitted are not made parties.
    
    Henrietta E. Gibbins conveyed certain property to one James I. Lowery upon condition that- he should hold the same in trust and pay the net income therefrom to her during her natural life, and, upon her death, convey the property “ to such of her children as she may leave surviving her in equal shares.”
    The trust deed contained the further provisions: “ But this trust is granted and accepted with the following reservations, conditions and powers, and the same are considerations moving the creation and acceptance of this trust: First. The party of the first part reserves to herself the right and power to revoke and terminate the trust hereby granted, but only by and with the consent of her husband, Austin Gibbins, and the party of the second part, on receiving a notice and consent in writing, revoking the said trust, executed by the party of the first part and her said husband, in the same manner as conveyances of real estate are required by law to be executed, will convey the property herein described to any person or persons that may be appointed and designated in said notice and consent; and the party of the second part will thereupon be relieved from any further liability under said trust without being obliged to resort to any court or officer or legal proceeding. Second. The party of the .second part accepts the trust upon the express reservation and condition that he may, if he so desires, at any time hereafter, resign and surrender such trust •and reconvey the property herein described to the party of the first part, and without his being obliged to resort to any court or officer for leave or authority .to do so and without any legal proceeding for that purpose, and that such reconveyance and resignation will entirely relievo him from any liability by reason of said trust or for said trust property after the time he resigns the same and reconveys said property.”
    After the death of the husband of the said Henrietta E. Gibbins the trustee reconveyed the property to her by a deed containing the following recital: ‘ ‘ Whereas, the party of the first part desires to resign and surrender such trust and to reconvey the premises hereinafter described to the party of the second part; and whereas, the party of the second part hereto has notified the party of the first part that she has revoked and terminated said trust, Now, Therefore, This Indenture Witnesseth.”
    At the time of the execution of the trust deed Henrietta E. Gibbins had three children, all of whom survived her. After the death of the said Henrietta E. Gibbins her executors, under a power of sale contained in her will, conveyed the real property to John Schreyer. The latter contracted to convey the same to Isabella Arendt, and a controversy thereupon arose as to whether Schreyer had a good title to the premises.
    
      Held, that the court would not determine that controversy without the presence of all the children of Henrietta E. Gibbins, and that the submission should consequently be dismissed.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Alexander Thain, for the plaintiff.
    
      Nathaniel Cohen, for the defendant.
   McLaughlin, J.:

This is a submission of a controversy upon agreed facts under section 1279 of the Code of Civil Procedure. Prom the submission it appears that in December, 1902, the plaintiff agreed in writing to convey to the defendant certain real estate in the city of Hew York in consideration of the defendant’s agreeing to convey to him certain other real estate in the same city—the title to both pieces to pass on the thirteenth of January following. Before the arrival of the time for the completion of the agreement by delivery of proper deeds, the defendant notified the plaintiff that she would hot complete the agreement for the reason that the plaintiff could not give her a marketable title to the land which he had agreed to convey, and the sole question is whether he has a marketable title to such real estate. The title to this real estate was formerly vested in one Henrietta E. Gibbins, who acquired it in February, 1887, under the will of her father and it seems to be conceded — at least no question is raised — but what she then had a marketable title. On the 8th of July, 1889, she conveyed the same, with other property, to one James L. Lowery, upon condition that he should hold the same in trust, lease the same, receive the rents, issues and profits thereof, and pay the net income therefrom to her during the term of her natural life, and upon her death convey it “ to such of her children as she may leave surviving her, in equal shares.” The deed further provided as follows: “ But this trust is granted and accepted with the following reservations, conditions and powers and the same are considerations moving the creation and acceptance of this trust. First. The party of the first part reserves to herself the right and power to revoke and terminate the trust hereby granted, but only by and with the consent of her husband Austin Gibbins, and the party of the second part, on receiving a notice and consent in writing, revoking the said trust, executed by the party of the first part and her said husband, in the same manner as conveyances of real estate are required by law to be executed, will convey the property herein described to any person or persons that may be appointed and designated in said notice and consent ; and the party of the second part will thereupon be relieved from any further liability under said trust without being obliged to resort to any court or officer or legal proceeding.. Second. The party of the second part accepts the trust upon the express reservation and condition that he may, if he so desires, at any time hereafter, resign and surrender such trust and reconvey the property herein described to the party of the first part and without his being obliged to resort to any court or officer for leave or authority to do so and without any legal proceeding for that purpose, and that such reconveyance and resignation will entirely relieve him from any liability by reason of said trust or for said trust property after the time he resigns the same and reconveys said property.”

At the time of the execution of this deed the grantor had three children, then minors, all of whom are now living, and. two still being under twenty-one years of age. Her husband, Austin Gibbins, died on the 6th of January, 1890, and she subsequently married one Guldenkirch,' and on the 4th of August, 1891, Lowery conveyed to her, under the name of Henrietta E. Guldenkirch, said real estate, and the conveyance contains the following recitals:

Whereas the party of the second part did, on or about the eighth day of July, 1889, grant and convey to the party of the first part the premises hereinafter mentioned in trust, * * * and whereas the party of the first part desires to resign and surrender such trust and to reconvey the premises hereinafter described to the party of the second part, and whereas the party of the second part hereto has notified the party of the first part that she has revoked and terminated said trust, How, Therefore, This Indenture Witnesseth,” etc.

Henrietta E. Guldenkirch died on the 16th of April, 1897, leaving a last will and testament, which was subsequently admitted to probate and letters testamentary issued to the executor therein named, who, under a power of sale contained in her will, conveyed such real estate to the plaintiff, and upon an accounting the act of the executor was approved and he was discharged as executor.

The foregoing' are all of the material facts necessary to be considered upon the question presented. The defendant contends that the plaintiff’s title is unmarketable, inasmuch as the trust created by Mrs. Gibbins in her deed-of July 8, 1889, has never been terminated, and that her executors, through whom the plaintiff claims, never had title; that on her death her children became seized of the premises and that the title to the same is now in them, while the plaintiff claims that the reconveyance by Lowery terminated the trust and reinvested the title in Mrs. Guldenkirch, and, therefore, he acquired a marketable title from her executors under the power of sale contained in her will.

We are of the opinion that a complete and final determination of the question submitted cannot be had without the presence of all of the children of Mrs. Guldenkirch, and for that reason we decline to pass upon the question presented, and pursuant to section 1281 of the Code of Oivil Procedure, dismiss the submission, without costs to either party.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Submission dismissed, without costs.  