
    Mary B. Bouton et al., App’lts, v. Carrie Thomas, as Executrix, etc., et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Waste—Action to recover for—Non-suit—When improper.
    The plaintiffs, claiming as remaindermen or reversioners under the will of the testator, seek to recover in this action for waste alleged to have been committed or directed by the life tenant. The will, after certain provisions made, gave the residue of the testator’s estate, real and personal, to the executors in trust for the payment of debts and legacies before specified, with power to sell and dispose of the same at public or private sale at such times and on such terms as they might deem best. Among the specific devises was one of a life estate of one of the origLal defendants in this action at whose death his executrix was substituted in his place. The will having been put in evidence by the plaintiffs at the trial, they rested, and a non-suit was granted on the ground that the title was in the trustees and not in the he.rs. Held, that the non-suit was erroneously granted.
    
      8. Will—When intended trust tabes effect as a power in trust— 1 R. S„ 738, § 55, surds. 1, 3—1 R. S., 739, § 56.
    
      Held, that the trust to pay debts and legacies was under 1 R. S., 738, § 55, subds. 1, 3, good as a power in trust to sell and apply the proceeds to that purpose, but that the trustees were not entitled to receive the rents and profits, nor were they entitled to the possession, and that no estate vested in them. See 1 R. S., 739, § 56.
    3. Same—Devise—Real property—Title to.
    
      Held, that, until the execution of the power, the fee was in the heirs subject to the life estate created by the will.
    4. Waste—Action for—Remainderman or reversioner may bring—
    1 R. S., 750, § 8—Code Civ. Pro., §§ 1651, 1653, 1655.
    
      Held, that under 1 R. S., 750, § 8, a person seized of an estate in remainder or reversion had the right to maintain an action of waste or trespass for any injury done to the inheritance notwithstanding an intervening estate for life or years, and that this right was continued by Code Civ. Pro., §§ 1651, 1653, 1655. .
    5. Same—Limits of present controversy.
    
      Held, that the controversy relating to legal title only, the doctrine of equitable conversion had no application.
    Appeal from a judgment of non-suit ordered at the Cayuga circuit.
    
      John L. Parker, for app’lts; John E. Cropsey, for resp’ts; PL. Greenfield, of counsel.
   Smith, P. J.

The plaintiffs, claiming as remaindermen or reversioners under the will of John C. Legern, deceased, seek to recover in this action for waste alleged to have been committed or directed by the life tenant. The will after directing the payment of the testator’s debts and specifying certain devises and bequests, gave the residue of the-estate, real and personal, to “my heirs to be equally divided between them, share'and share alike, including my wife.” By a subsequent claim, it gave “all my real and personal estate of what nature or kind, soever, to Emmett Legern, Sarah A. Legern and Giles M. Stoddard, the executors of this, my last will and testament, hereinafter nominated and appointed, in trust for the payment of my debts and the legacies above-specified, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner as to them shall seem meet.” Among the specified devises was one of a life estate in the real estate in question to the said Emmett Legern, who was one of the original defendants in this-action. He having died, his executrix, Carrie Thomas, was substituted in his place. At the trial, the plaintiffs put the will in evidence, and when they rested, the defendants moved for a non-suit upon the ground, as the case states, that the. plaintiffs “have shown neither title nor possession to the premises in question, and for that reason they cannot maintain this action.” The court granted the motion upon the ground, as the case also states, that the title was in the trustees and not in the heirs.

In that, we think the learned justice was in error. The trust was to pay debts and legacies. Under the statute it was good as a power in trust to sell and apply the proceeds to that purpose (1 R S., 728, § 55, subds. 1, 2), but the trustees were not authorized to receive the rents and profits, nor were they entitled to the possession; and, therefore, no estate vested in them. 1 R. S„, 729, § 56. Until the execution of the power, the fee was in the heirs subject to the life estate of Emmett Legern. Id., §§ 56, 59. This view of the statutes cited, is sustained by numerous adjudications, among which are Boynton v Hoyt (1 Den., 53), Germond v. Jones (2 Hill, 569), De Peyster v. Clendining (8 Paige, 295), Manice v. Manice (43 N. Y., 303, 364), Chamberlain v. Taylor (105 N. Y., 185; 7 N. Y. State Rep., 517).

The Revised Statutes gave to a person seized of an estate in remainder or reversion, the right to maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years. 1 R. S., 750, § 8. That right, we understand, is continued by the Code of Civil Procedure. Sections 1651, 1652, 1655. The waste in this case consisted in cutting down growing trees.

If this were a case in equity the judgment appealed from might perhaps be sustained upon the doctrine of equitable conversion. The land was given to the executors in trust for the payment of debts and legacies, “with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet.” And, by a previous clause, the gift of the use of the' land in question to the son, Emmett, for life, was accompanied by a provision that, upon his death, such land be converted Into money by the executors, or the survivor of them and divided equally among the heirs. Although the executors were to exercise their discretion as to time, manner and terms, the direction to sell, upon the death of the life tenant, we think, was imperative and not discretionary, so that, in equity, the heirs would be regarded as taking the property as money and not as land. Stagg v. Jackson, 1 Comst., 206, op. of Jewett, Oh. J., p. 212, and authorities there cited by him; 1 Jarm. on Wills (3d Am. ed.), p. 481, m. p. 529; Moncrief v. Ross, 50 N. Y., 431.

But, as the controversy in this action relates to the legal title only, the doctrine of equitable conversion has no application.

It is now contended by the respondent’s counsel that there is no evidence that the plaintiff’s are heirs of the testator. _ The point does not appear to have been suggested at-the trial. On the contrary, the fact of the plaintiff’s heir-ship seems to have been assumed without dispute. We think that, for the error above pointed out, there should be a new trial, when the question of heirship, if there is. any real dispute about it, can be distinctly litigated.

Judgment reversed and new trial ordered, costs to abide event.

Barker, Haight and Bradley, JJ,, concur.  