
    CATHERINE W. COOKE, Respondent, v. SPENCER C. PLATT, et al., Appellants.
    
      Administrator with will annexed—Discretionary power of sale.
    
    An administrator with the will annexed, cannot execute a discretionary power of sale of real estate with which the executors were invested by the terms of the testator’s will.
    The testator died in 1863, leaving four children. By his will he appointed his sons executors, and divided his real and personal estate equally among his children. The executors, as such, were to collect the rents until a sale and division or distribution of the whole estate should be made by them. They were also empowered to sell or mortgage real estate in their discretion. In the end they were directed to divide the whole estate real and personal among the devisees, and it was clearly the testator’s intent that his children should receive and enter into the enjoyment of their respective shares without unreasonable delay. The executors were removed from office before a sale or division of the property was made, and a receiver was appointed with all the powers of “ an administrator with the will annexed.”
    
      
      Decided December 1, 1884.
    
      Held, that the power of sale was an incident to the division of the estate, resting entirely in the discretion of the executors, and ended with the termination of their oficial relations to the estate, and cannot be exercised by the receiver.
    
      Further held, that this case is to be distinguished from Mott v. Ackerman (92 N. Y. 539), where a power of sale was given to executors for the purpose of paying debts and legacies, and where there was an equitable conversion of the land for such payment and distribution, growing out of an imperative power of sale.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from an order made at special term, authorizing and directing James M. Smith, Esq., the receiver appointed herein, to execute a power of sale contained in the will of Nathan 0. Platt, deceased, and to sell the premises Nos. 119 and 121 Nassau street, in this city, thereunder. Nathan 0. Platt, the elder, died leaving a will, by which, in terms, he devises and bequeaths all his estate, both real and personal, to his executors, “with full power to receive the rents, issues and profits thereof, and to contract to sell, mortgage and convey my said estate in their discretion, and good and sufficient deeds and instruments thereof to make, execute and deliver. Upon trust, nevertheless, to divide and distribute my said estate or its proce'eds, after the payment of my debts, to and among my four children . . . in equal proportions.” At the time of his death the testator had transferred all his real and personal property to his brother and partner, George W. Platt. The suit of Platt v. Platt'was instituted in the supreme court for the purpose of setting aside these transfers, and in 1813 resulted in a decree determining them to be wholly fraudulent, null and void. Having thus reinstated the testator’s title in the real estate, the decree went on to direct an accounting of the rents and profits thereof, and also of the partnership affairs and mutual accounts of the two brothers. The final result of this accounting was the ascertainment of a balance of about $10,000 due from George W. Platt, which has not yet been paid. Pending the accounting in Platt v. Platt, the petitioner brought the present action and obtained therein a decree whereby the executors of Nathan 0. Platt were removed, and James M. Smith, Esq., was appointed receiver. The decree provided that the receiver should “succeed to the trust of the administration of said estate, and to all the rights and remedies that would have been possessed by the said executors but for their removal, and that the said receiver be, and he hereby is invested with all the rights and powers of receivers according to law, and with all the rights and powers of an administrator with the will annexed of the estate of said Nathan 0. Platt, deceased.”
    
      Marsh, Wilson & Wallace, for appellants.
    I. The will of Nathan 0. Platt conferred no estate in his lands upon his executors, but only a power in trust. The title of the lands vested in his four children subject to the execution of the power. The testator assumed to devise his lands to his executors and to empower them to receive the rents and profits; but the will failed to accomplish either result. The trust to receive rents and profits is void, because it is not a trust to receive them for any of the purposes specified in subdivisions 3 and 4 of § 55, 1 R. S. 728. And accordingly the devise to the executors is ineffectual by the terms of § 56, Ib. 729. “Under our statute of uses and trusts, when the estate is created by will, two things are necessary to vest an estate in the trustee : it must be an express trust, and a trust to receive the rents and profits of lands for certain specified purposes ” (Boynton v. Hoyt, 1 Den. 53 ; Hawley v. James, 16 Wend. 61).
    II. The power of sale given to the executors was not imperative, but discretionary; and there was no equitable conversion. To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon the trustees, to sell it in any event. Such conversion rests upon the principle that equity considers that to be done which ought to be done. A mere discretionary power of sale produces no such result (White v. Howard, 46 N. Y. 162 ; Greenway v. Greenway, 29 L. J., Ch. 601; Lucas v. Brandreth, 28 Beav. 473; Polly v. Seymour, 2 Younge & Collyer, 708). The present question reduces itself, thus, to this : Did the clear intention of Nathan 0. Platt, as indicated by his will, imperatively require for its fulfillment a sale of his real estate by his executors ? It is very difficult to find the indications of such an intention in the will. It contemplates, first, the payment of debts, and then an equal division of all the 'testator’s estate between his four children. This is all it seeks to accomplish. It empowers the executors “in their discretion ” to sell or to mortgage, and the final division is to be—after payment of' debts—of “my said estate, or its proceeds,” clearly contemplating a division, without sale, of so much as might then remain unsold. So far, then, as the power of sale had been exercised the executors were to divide the proceeds between the four children. So far as it had not been exercised, the legal title which, as we have already seen, vested in the four childred, remained undisturbed, and the equal division executed itself, by operation of law,—the four taking equally as tenants in common. It matters not whether they took as heirs at law, or as devisees by implication, for in either case their share and title would be precisely the same.
    III. No power of sale has passed to the receiver. The power of sale was a personal trust and discretion, vested, it is true, in the executors, but not one appertaining to the duties of the office of executor. For the purposes of that power they are as distinctively trustees as they would be if the executor were an altogether different person. It was confided to their personal discretion to determine whether-it was desirable to sell or not to sell, and that discretion must be exercised by them or by no one (Mott v. Ackerman, 92 N. Y. 553 ; Dunning v. Ocean Bank, 61 Ib. 501 ; Dominick v. Michael, 4 Sandf. 374).
    
      
      Payson Merrill, for respondent.
    I. The power given in the will is a trust power, the exercise of which can be controlled by a court of equity. It is a power in trust. Delaney v. McCormack (88 N. Y. 114), establishes that the power conferred on the executors is a power in trust, survived their removal, and may be executed by their successors, unless its execution or non-execution is made plainly to depend on the will of the executors. It has repeatedly been held that power given to executors over real estate, similar to that which the law gives them over the personalty, is not based on personal trust, and that it survives the executor, without reference to the question whether the will effects an equitable conversion or not (Paret v. Keneally, 30 Hun, 15 ; Bingham v. Jones, 25 Ib. 6 ; Fish v. Coster, 28 Ib. 64; Farrar v. McCue, 89 N. Y. 139 ; Lent v. Howard, 89 Ib. 169 ; Mott v. Ackerman, 92 Ib. 539). On the removal of the executors, this power in trust vested in the receiver. Mott v. Ackerman, holds that when a power is annexed to the office of executor, and is given to enable him the better to discharge the duties pertaining to that office, it may be exercised by an administrator with the will annexed. And a single glance at the will of Nathan C. Platt will show that the powers and duties therein prescribed in respect to the real estate are imposed on the office of the executor, and not on the individuals independent of the office.
    
      James M. Smith, receiver, William Allen, of counsel, and W. R. Martin, of counsel for W. H. Platt.
    I. A devise which by its terms vests the legal estate in the executors has that effect. Here the devise is to them with words of succession absolutely forever. When the terms of the devise are not explicit, with words which create a fee, and it is left for the courts to construe, they hold that the trustee takes that quantity of interest which the purpose of the trust requires ; and so long only as the trust requires ; that .then the estate vests in the beneficiaries (Nicoll v. Walworth, 4 Den. 385 ; Embury v. Sheldon, 68 N. Y. 227; Bennett v. Garlock, 79 Ib. 302).
    
      II. The statutory provision that a devise of lands “where the executors are not also empowered to receive the rents and profits shall vest no estate in the trustees,” is complied with in this will (1 R. S. 728, § 56). They are so empowered. The trust is, therefore, within the statute as an express trust (§55). The trust is to collect the rents and sell the lands, and apply the proceeds to the payment of the debts, and then to divide them between the devisees.
    TV". This legal estate, or if it be only a power, then the power passed to the receiver upon the grounds stated in the plaintiff’s points.
   By the Court.

Van Vorst, J.

This appeal involves the question as to the power of an administrator with the will annexed, to execute a power of sale of real estate, with which the executors were invested by the terms of the testator’s will.

As it was announced by the counsel upon the argument, that on account of the importance of the interests involved, the case would certainly be taken to the court of appeals, whatever might be the decision here, we will do no more than state the conclusions reached by us at the close of the argument, without an examination of the numerous cases cited.

The question has been already considered in the courts of this State, and some conflict in opinion exists.

Mott v. Ackerman (92 N. Y. 539), does not go to the length of sustaining the plaintiff’s contention.

The testator died in 1863, leaving four children. He appointed his three sons executors of his will, but gave-his estate in substance to his four children in equal proportions. By the terms of his will, he clothed his executors -with a temporary power and control over his whole estate, real and personal, and in the end directed them to divide it among the devisees. An inspection of the will shows clearly enough, that it was the intention of the testator, that his four children should, without unreasonable delay, receive and enter into the enjoyment of their respective shares of his estate. The executors, _ as such, were to collect the rents until a sale and division or distribution of the whole estate should be made by them. The executors were also empowered to sell or mortgage the real estate at their discretion.

In so far as concerns the power of mortgaging, selling and distributing the proceeds of the real estate, among the four children, the devisees thereof, the same did not necessarily belong to the office of the persons named as executors. This power was expressly conferred by the testator, in addition to the duty cast upon them by law, over his estate, as the executors thereof. The testator doubtless believed that the power would be discreetly, and to the interest of the devisees and of his estate, exercised. But the executors never exercised the power of sale, and their right to collect the rents has been taken away.

They have been removed from their office as executors, and Mr. Smith' has been appointed receiver of the estate with all the power of an administrator with the will annexed.” As such administrator he will perform such duties, belonging to the office of executor, as the executors left unexecuted, and will administer the personal estate. To the trust of administration he has succeeded by the order of this court, and to all the rights and powers of an administrator with the will annexed. The power of sale, as an incident to a division of the estate among the devisees, to be exercised in the discretion of the executors, must be regarded as ending with the termination of their official relation to the estate, and that the administrator with the will annexed cannot exercise it.

We know of no case, in which it has been decided that such power, the exercise of which depended upon the judgment and discretion of the executors named in a will, has passed to the administrator with the will annexed. Mott v. Ackerman (supra), does not so hold. That case is an authority for the proposition, that where there is a power of sale given to executors for the purpose of paying debts and legacies, and where there is an equitable conversion of the land for such payment and distribution, growing out of an imperative power of sale, such power may be exercised by the administrator with the will annexed. But such is not this case. Here no sale was imperatively directed by the testator. Had there been, the proceeds would have been assets in the hands of the executors, for which they would have been accountable.

Nor was the power of sale accompanied with a direction to pay debts and legacies. 'Whether a sale should be made or not, depended upon the decision of the executors, who were authorized to sell, mortgage, and convey in their discretion. They might mortgage and not sell, or sell without having mortgaged, as they should deem best. ,

But these powers were evidently to be exercised for the purpose of a division and distribution, with which executors, in so far as the real estate is concerned, have under the law no duty.

More than twenty years have elapsed since the testator’s death. It is difficult to discover any valid reason for investing the administrator with the will annexed, at this late day, with the title to, or power over the disposition of this real estate, or to cast upon him the duty of selling the same, and distributing the proceeds of the sale among the devisees.

It is more in accordance with law and reason, to hold that the children of the testator, his devisees under the will, are seized of the estate, and the power to sell and convey the same. And that, as the persons in whom the discretion to sell or mortgage have been removed from their trust, there remains no impediment to their enjoyment of the estate.

For these reasons we are of opinion that the order appealed from should be reversed, but without costs.

Sedgwick, Ch., J. and Freedman, J., concurred.  