
    E. McSorley v. A. Leary and J. Hoey, Executors of J. McSorley, and others.
    Oct. 30 :
    Dec. 21, 1846.
    A devise of real estate to, and for the benefit of, four minor children, not to be sold or divided till the youngest survivor shall become of age ; and if either of them should die, his share to be divided among the survivors; is void as suspending the absolute power of alienation, contrary to law.
    
      A. power in trust, to receive the rents and profits and apply them as directed, including a division of the surplus among such four children, was held to be coequal in duration with the limitation of the division and vesting of the estate, and therefore void, on the same ground.
    The accounts of trustees of real estate, are not within the jurisdiction of the surrogate.
    Where such trustees had accounted before the surrogate in good faith, (the beneficiaries being infants,) the court on decreeing an account, left it to the master to adopt the result before the surrogate, if in his opinion the rights of the infants were properly secured there, and would not be prejudiced by that course,
    The bill in this cause was filed by the heirs of John McSorley, against his executors, to have the trusts of his last will and testament declared void, and for an account of the rents and profits. The will was dated June 3, 1838. The testator died leaving the four children surviving, who are named in the will, all of whom were infants when the cause was heard. The wife of the testator survived him, and was a party to the suit. The will was in the following words, viz :
    “In the name of God, Amen, I, John McSorley, of the city of New York, Grocer, being sick and weak of body, but of sound and disposing mind, memory, and understanding, (blessed be God for the same,) being about to depart from here, in the packet ship “ United States,” for Liverpool, and thence to Trillick, in the county Tyrone, Ireland, for the benefit and improvement of my health; do make and publish this my last will and testament, in manner and form following, that is to say : First. I order and direct my just debts and funeral expenses, to be paid by my executors, hereinafter mentioned and named, as soon after my decease as conveniently may be. Second. It is my will and desire, that my beloved wife, Eliza McSorley, continue the present business, the better to enable her to support and educate our dear children, and manage and conduct the affairs, (by and with the advice of the executors hereinafter named,) in the same manner as heretofore, to the best advantage, and the surplus arising from rents, or other sources, to be applied, first, to the payment of sundry small debts; and secondly, when said debts are discharged, to be applied to the payment of the mortgage to the state of New York. Third. When said mortgage shall have been paid, it is my will and desire, that the surplus arising from said estate be divided in manner following, to wit, one third part to my said wife, Eliza, for her use and benefit during her natural life, and the remaining two-thirds to be divided equally among my four dear children, namely, John McSorley, Edward McSorley, Mary Ann McSorley, and Charles McSorley ; provided, nevertheless, that in case my said wife, Eliza, should see fit at any time to change her situation in life by marriage, which in such event, it is my will that her power in the management of the estate shall cease, and that the executors, hereinafter named, shall have the entire management thereof; and that they pay to her quarterly, each and every year during the term of her natural life, an equal one third part of the proceeds of said estate, after paying the expenses thereon. Fourth. It is further my will, that after the death of my said wife Eliza, that said third part to her apportioned during her life time, shall then cease, and be divided equally amongst my (before named) four children. Fifth. It is my will, in case one or more of the aforesaid children should die, that their share of said estate shall be equally divided amongst the surviving children. Sixth. I further will and bequeath to my beloved wife Eliza, the household furniture. Seventh. It is my will and desire, that no part of my real estate be sold, nor division of the same be made, before the youngest surviving child of the before mentioned, shall have arrived of age. I hereby nominate, constitute, and appoint, my esteemed friends, Andrew Leary and John Hoey, of the city of New ■ York, executors, and my beloved wife Eliza McSorley, executrix, of this my last will and testament, hereby revoking and making null and void, all other wills and codicils by me at any time heretofore made.”
    In respect of the rents and profits, in case the will were adjudged void, the executors set up an accounting before the surrogate of the county of New York, in which the rents were all included, and the accounts passed by the surrogate.
    
      J. Lynch, for the complainants.
    
      B. F. Sherman, for Leary and Hoey, executors, &c.
   The Vice-Chancellor.

devise of the real estate, is palpably void, in consequence of its suspending the absolute power of alienation contrary to law.

There is an implied power conferred by the will, first on the widow, and on her marrying, then upon the other two executors, to receive the rents and profits, and apply them in the manner designated. This power was obviously intended to be co-equal with the limitation of the real estate itself, and was therefore to continue until the youngest child became of age. It is a part of the testator’s general scheme, that the estate should be kept entire until that time, and that it should then vest in possession in his surviving children. The trust power must consequently, fall with the general devise.

The real estate must be deemed to have descended to the four children at the death of the testator, and they were entitled to its immediate possession. As the executors acted in confidence of the validity of the will, their proceedings within its fair scope, must be upheld.

In regard to the account said to have been taken before the surrogate, their dealings in respect of the real estate, were in their capacity as trustees of the power, and not as executors. The subject was not within the jurisdiction of the surrogate, unless perhaps by the consent of parties; and these infants were not capable of giving their assent. Nevertheless, I will leave it to the master, to whom the accounting will be referred, to adopt the result before the surrogate, if in his opinion the rights of the infants were properly secured there, and will not be prejudiced by that course.

The directions sought as to the future application of the income, will be more appropriate in the order appointing a general guardian.

There must be a decree declaring the devise and the trust powers to be void, and directing the trustees to deliver the real estate to the general guardian, and to account for the rents and profits since the death of the testator.  