
    Governeur Kortright, Trustee of Sarah J. Taylor, v. Annie Storminger.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19, 1888.)
    
    1. Wills—Power of sale vested in executors—Death op one of the devisees—Effect on power of sale.
    Micholi s G. Kortright died seized of the premises in question. By his will he directed that all of his property real and personal after the payment of his debts should be equally divided between his wife and children, and directed his executors to divide the same in as many equal shares as might be necessary. By another clause of the will the executors were directed to convey to his wife and each child in fee one of such equal shares in fee and also to retain the residue in trust for the benefit of the wife and children during their natural lives. By the eleventh clause it was provided “ I give to my executors full power and authority * * * to sell and convey my real and personal estate,” etc. The executors appointed by the will renounced and finally the plaintiff was appointed trustee by the supreme court. The widow died subsequent to the testator's death. It was objected that the share of the widow went on her death to her children and that the trustee under the will could not sell the same under the power of sale. Held, that there are no restrictions made to the power of the executors to sell and that the trustee uuder the will had clearly a power in trust which he could exercise at any time that he saw fit.
    2. Trustees—Appointed on renunciation op executors—Power op sale—When vested in the newly appointed trustees.
    
      Held, That the present trustee possesses all the power to sell which was possessed by the original trustee when from the language of the will a, personal confidence was placed on the persons there named as trustees. But that no such conclusion can be drawn from the terms of the will.
    3. Same—Power op sale not vested in the administrators with will ANNEXED.
    
      Held, the power of sale in such cases passes to the new trustees ap pointed by the court rather than to the administrators with the will annexed.
    Case on submission upon an agreed state of facts.
    
      John M. Bowers, for pl’ff; Charles L. Halberstadt, for deft.
   Macomber, J.

Upon the facts submitted, the sale question is whether or not the plaintiff tendered to the defendant a good title to the premises which were sold to her at public auction. This is to be determined by the provisions of the will of Nicholas Gr. Kortright, who died before the first day of April, 1874, in possession and owner in fee simple of these with other premises. By the third item of his will, he directed that all of his property, both real and personal after the payment of the debts, should be equally divided between his wife and children and directed the executors to divide the same into as many equal shares as might be necessary to give to his wife and children each two shares thereof.

By the fifth clause of the will, the executors were directed to convey to the wife and each of the children, one of such equal shares which should be held by the parties respectively, absolutely at their own disposal free from all control whatever. By the sixth clause the executors were directed to retain the residue of such equal shares in trust for the benefit of the wife and children and pay to the wife and each of the children during their natural lives respectively the interest or income of one of such equal shares, keeping-separately the accounts of each share so retained by them.

The eleventh item of the will is as follows:

11. “I give to my executors full power and authority in regard to the investments of my said estate and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and after the payment of my debts as hereinbefore provided, to invest the proceeds in other real estate or in personal securities as they in their discretion may deem most for the interests of the parties interested in my estate.”

We are not apprised of the objections which the defendant makes to the deed tendered her by the plaintiff, except as the same is contained in the submission papers, which are, first, that the property to be conveyed to her comes under the sixth clause of the will of Nicholas G. Kortright; and the conveyance offered by the plaintiff only conveys a life-estate, and, second; that the executors of the will, never having qualified as such, the ninth clause in said will is now inoperative, and any trustee appointed to carry out the terms of said will cannot by deed give her a title other than a life-estate.

The objection seems to be in substance that inasmuch as by the ninth clause of the will, the portion so set apart for the uses of the wife during her life time, went, after her death to her children; that the trustee, under the will, could not sell the same or make any other disposition of the property than to hold it as trustee for the use of the beneficiary.

But this is not a tenable position. There are no restrictions made to the power of the executors to sell under the eleventh clause of the will. The trust imposed by the preceding sections would follow the proceeds of the sale of real estate or of any of the personal property which they saw fit to dispose of in pursuance of this authority. The trustee, under the will, had clearly a power in trust which he could exercise at any time that he saw fit, being bound, if the real estate should be converted into personal propperty, to invest the proceeds either in other real estate or in personal securities.

The language of the ninth section is that “after the death of my said wife, that portion of her share remaining in the hands of my executors, shall be divided,” etc. This seems to have been written in view of the intended provisions for the sale of the property mentioned' in the subsequent parts of the will.

The only remaining question is whether or not the plaintiff possesses the powers that were given to the original executors. The original executors were Edward Min-turn and George W. Blunt, who are described also as trustees of the real estate. They renounced and refused to qualify, either as trustees or executors. On June 8, 1874, the surrogate of the county of New York appointed Sarah J. Kortright, the wife of the testator (who has since married and bears the name now of Sarah J. Taylor), and Benjamin Collins as administrators, with the will annexed, of the last will and testament of Nicholas G. Kortright. Benjamin Collins, prior to the auction sale, died, leaving Sarah J. Taylor the sole surviving administratrix, with the will annexed, of the testator. She, in the month of February, 1876_, instituted a partition suit in the supreme court, in this state, seeking a division of the real estate whereof Nicholas Gf. Kortright died seized, and seeking also the appointment of trustees in the place of Minturn and Blunt, who were the trustees in the will, and praying that the trust shares might be set off to said trustees in accordance with the provisions of the will. That action resulted in a judgment on the 2d of April, 1876, by which it was determined that Sarah J. Kortright was adjudged to be entitled in fee to one-sixth part of the premises sought to be partioned, Governeur Kortright to another sixth in fee, Lawrence M. Kortright to another sixth in fee.

It was further adjudged that the trustees under the will were entitled to have and to hold as such trustees, another sixth part thereof for the life of said Sarah J. Kortright, another one-sixth part thereof for the life of said Governeur Kortright, and another one-sixth part thereof for the life of the said Lawrence M. Kortright.

It was further adjudged that the trust shares were directed to be held by the trustees under the trust created and declared by the will of Nicholas G. Kortright. The share to be held for Mrs. Kortright, now Taylor, was set off to the trustees by the commissioners. Benjamin Collins was appointed a trustee by the supreme court on the 15 th day of March, 1887, and duly qualified, and was declared by the court to be clothed with the powers of the original trustees named in the will, and Mr. Collins was afterwards permitted to resign his trust, and Governeur Kortright, the plaintiff in this action, was appointed in his stead, with like powers and authority, and he received from Benjamin Collins a conveyance of all the right, title and interest that the trustee, as such, had in the one-sixth part of the lands mentioned in the will of the testator, and he now holds the title thereto subject to the powers and trusts declared by said will.

It appears, therefore, that the present trustee possesses all of the powers to sell any of the real estate of the testator which was possessed by the original trustees, unless from the language of the will, a personal confidence was placed in the persons there named as trustees, which was not intended by the testator to follow any successor that might be appointed, so as to enable him to sell the property. But no such conclusion can be drawn from the terms of the will The language of section 11 is general in its nature, and the exercise of the right of sale is not restricted to the event only that the particular persons named thereafter as trustees should deem it best for the estate that the property be sold.

The power of sale was an imperative and general power, which though like all powers in trust, was discretionary, and could on the death, removal or resignation of the trustees, be executed by a trustee appointed by the court to carry out the trusts created by the will. 1 R. S., 728, § 55; 1 R. S. 732, § 77, et sec; 1 R. S., 730, § 68, et sec. That the power in such cases passes to the new trustees appointed by the court rather than to the administrator with the will annexed appears in the cases of Cooke v. Platt (98 N. Y., 39). Mott v. Ackerman (92 N. Y., 540).

The judgment should be in favor of the plaintiff for a specific performance of the contract in accordance, with the terms of the submission.

Bartlett, J., concurs.

Van Brunt, P. J.

I concur in the conclusion arrived at by Mr. Justice Maoomber, but I do not see that any question can be raised as to the power of the trustee to convey under the broad admissions contained in the agreed •case.

It is agreed in the case submitted that in a certain action brought in the supreme court, a final judgment was duly entered, whereby it was adjudged that one Benjamin Collins as trustee, was vested with full power and authority to execute the powers and trusts created by the will in question and that the said supreme court by its order, duly made and entered on due and sufficient petition, did duly .order and adjudge that said Benjamin Collins be permitted, and he was thereby permitted to surrender his trust and that by another order, duly made and entered, the said court appointed the plaintiff trustee in the place of said Collins to hold the share of said estate in question, with nil the powers and authority given to the trustees by the provisions of the original will.

It is also admitted that all these judgments and orders of the supreme court were made on due and full notice to all the parties interested, and that in each case had full and complete jurisdiction in the premises.

These facts being admitted, there is no question as to the powers of the trustee open for discussion now.

It is admitted by this record that a court having jurisdiction of the subject-matter and all the parties, has adjudged that the substituted trustee has the power which is sought to be questioned in this case.

That adjudication, under these circumstances, disposes of the question, and the decrees and orders mentioned cannot be reviewed or reversed in this proceeding.

The plaintiff is entitled to judgment, therefore, and it is not necessary to discuss at all the question proposed to be-submitted.  