
    Richard B. Horton et al., Executors, Respondents, v. Theodore F. McCoy, impleaded, etc., Appellant.
    
    In an action brought to obtain judicial construction of a will, it was adjudged that the title to a greater portion of the real estate of which the testatrix died seized, vested in her heirs upon her death, subject to the execution of a power of sale by the executors, and said executors were directed to sell and convey said real estate in pursuance of a contract made by them. This was accordingly done, and the proceeds paid over to the county treasurer. Subsequently one of the heirs, an infant over eighteen years of age, died, leaving a will whereby she devised and bequeathed all of her property to her husband, who petitioned to have the share of his wife in the fund paid over to him.
    
      Held, that the proceeds of the sale were to be regarded as personal property, and that the portion of the infant heir could be disposed of by, and passed under her will.
    Where real estate owned by tenants in common, of whom an infant is one, is sold under and in pursuance of a judgment in a partition suit, instituted by others of the tenants in common, the portion of the proceeds belonging to the infant remains impressed with the character of real estate, and as such does not pass under the infant’s will.
    (Argued November 21, 1871;
    decided November 28, 1871.)
    Appeal from an order of the General Term of the Supreme Court in the second judicial department, affirming an order of Special Term denying the application of defendant, McCoy, for an order that certain moneys be paid over to him.
    Susan E. Ackerman made her will, dated February 6, 1867, and died in the year 1867, leaving five children,’one of whom, the plaintiff, Oscar B. Collins, was an adult, and the other four were infants, and the defendants, one of whom, Annie D. McCoy, was the wife of appellant. By her will, Mrs. Ackerman directed her executors to sell one part of her farm at such time and in such way, as to such executors should seem to be for the best interest of her estate, as soon after her decease as they could sell the same for the best interest of her estate, and to invest the proceeds thereof at interest, until her youngest child should arrive at the age of twenty-five years.
    In the next place, she directed her executors to keep another part of her farm as a homestead for her children until her youngest child should arrive at the age of twenty-five years, and to sell the same as soon thereafter as should seem hest for the interest of her estate.
    The plaintiffs brought this action for a construction of said will, alleging that the executors had made a contract to sell the part which by said will they were directed to sell as soon after the decease of the testatrix as the best interest of the estate required, and praying that the provisions of said will authorizing said executors to make such sale, might be declared valid, and said executors directed to convey according to such contract; and also asking that the provisions of said will which directed the executors to keep the other part of the farm as a homestead, until the youngest child should arrive at the age of twenty-five years, should be declared void, and that the children of the testatrix might be adjudged to own the same as tenants in common, and that the same might be partitioned or sold, as might be most for their interest.
    All the children of the testatrix were parties to this action; also the petitioner, as husband of said Annie D. McCoy.
    The court adjudged the power of sale valid, and directed a conveyance according to the prayer of the complaint; but-decided the trusts specified in the will to be void.
    The executors sold the portion of the lands as to which the power of sale was adjudged to be valid, and brought four-fifths of the proceeds into court, and paid over the same to the county treasurer of Dutchess county, as directed by said judgment, to abide the further order of said court; and the other portion of said lands, as to which the power of sale was adjudged void, was sold by a referee appointed by said judgment, and four-fifths of the proceeds thereof paid over to said treasurer, where all of said moneys still remain; one-fourth of said moneys being adjudged to belong to the defendant, Annie D. McCoy.
    
      C. Frost for appellant.
    Land directed to be sold under a valid power or trust contained in a will is to be accounted for as personal property. (Stagg v. Jackson, 1 Comst., 206; Craig v. Leslie, 3 Wheaton, 563; Martin v. Sherman, 2 Sand. Ch. R., 341; McGregor, 16 Barb., 531; Hammond v. Stier, 2 Gill & Johns. Maryland R., 81; The State v. Krebs, 6 Harris & Johnson Maryland, 31; Leadenham v. Nicholson, 1 Harris, 2 Gill, 267; Betts v. Wirt, 3 Maryland Ch. R., 113 ; In Biggert's Estate, 20 Penn. R., 17; Erb v. Erb, 9 Watts & Sergeant, 147; Grider v. McClay, 11 Sergeant & Rawle, 224; Clipper v. Linward, 5 Watts, 115; Emerson v. Cutler, 14 Pick. Mass. R., 108.) The court knows “ no equity between the heir and next of kin, and makes no constructive conversion in favor of either.” (Hill on Trusts and Trustees, 77; Shearer v. Shearer, 98 Mass., 113; 2 Vesey, Jr., 70; 1 Vesey, Jr., 464.) The legacies vested immediately on the death of the testatrix. (Everitt v. Everitt, above cited; Burril v. Shiel, 2 Barb., 457; Tucker v. Bishop, 16 N. Y. R., 402; Pinney v. Fanchar, 3 Bradf., 198; Saunders v. Vantier, 1 C. & P., 240, and note.
    
      A. Anthony for respondents.
    The property was real estate, and the court could not change its nature. (19 Vesey, 122, 123; Savage v. Burnham, 17 N. Y., 569.) Where there is a bequest in remainder, after the determination of a particular estate, with an executory limitation over in case of the death of a legatee, such dying is to be applied to the time when the remainder tabes effect in possession. (Drake v. Pell, 3 Edwards’ Ch., 251; Harvey v. McLaughlin, 1 Price’s Rep., 264; Galland v. Leonard, 1 Swanst., 161; Adams v. Beekman, 1 Paige Ch., 633; Carmichael v. Carmichael, 4 Keyes, 346.) Where a legacy is given to two or more persons jointly, the survivor or survivors take the whole. (2 Barb. Sup. Court R., 83; 4 Bradf. Surr. R., 308.) When the whole trust fails, the power fails, and the real estate descends to the heir as such. ( Wood v. Keyes, 8 Paige Ch., 364; Howley v. James, 7 id., 213; Jackson v. Jansen, 6 Johns., 73; Slocum v. Slocum, 4 Edwards’ Ch., 613; Bogart v. Hertell, 4 Hill, 492; Harris v. Clark, 7 N. Y., 242; Thompson v. Carmichael’s Ex’rs, 1 Sand. Ch., 387; Wright and or’s v. Trustees of M. E. Church, 1 Hoff. Ch., 252; Sharpsteen v. Tillou, 3 Cow., 651; Jarman on Wills, vol. 1, pp. 475, 499, 502, 505, 507, 508, 509, 512, 513.)
    
      
       The opinion in this case could not be found when 46 N. Y. was prepared. It therefore did not appear in its order therein.
    
   Church, Ch. J.

The judgment has been executed by the sale of the real estate, and the proceeds are now in court. It is clear that for the purposes.of this motion the judgment entered in this action is conclusive. It is not before us for review, and we express no opinion upon the correctness of the construction of the will as determined by this adjudication. We are •bound by that construction, and the judgment is also conclusive upon all the parties to the action. The judgment declared the power to sell the bulk' of the real estate valid, but the trust to retain and invest the proceeds thereof, until the youngest child, should arrive at twenty-five years of age, invalid and void. It also declared the trust to keep the homestead until the same period, void. By this construction the title to the larger portion of the real estate became vested in the heirs immediately upon the death of the testatrix, subject to the execution of the power of sale made by the executors. It is a familiar rule, that real estate sold in pursuance of a power in a will, is deemed to be converted into personal property by direction of the testator, and it is not material for the purposes of this motion whether the conversion is to be regarded as effected at the death of the testatrix or when the sale was actually made. (Stagg v. Jackson, 1 Comst., 210; 3 Wheaton’s R., 563; 7 Barbour R., 226.)

It follows that, as to the proceeds of this part of the real estate, they must be regarded as personal property; and as to the portion to which Mrs. McCoy was entitled it would pass by her will, the petitioner has the legal right to receive it. Even if unborn children of one or more of the legatees dying before the termination of the trust declared in the will, would not be bound by the judgment (as to which we express no opinion), Mrs. McCoy would not be affected, because, although such children are entitled, under the original provisions of the will, to take the share of the legatee so dying, she having died without issue, her interest was absolute. The interest of each of the legatees, according to the original provisions, was a vested interest from the death of the testator, subject to become divested by the death of either, leaving issue prior to the determination of the trust. (1 Paige, 632; 1 Price R., 262; 1 Swanston, 161.) So that, if the trust had been declared valid, the interest of Mrs. McCoy would have become absolute upon her death, the contingency upon which the defeasance depended not having happened.

The more difficult question to determine, is whether the proceeds of the homestead property is also to he regarded as personal estate. As to this property, no power of sale is contained in the will. The title vested in the heirs by descent, and it has been sold under partition proceedings instituted in this action.

The owner of property has the absolute right to change its character at pleasure, and hence it is that when a testator directs such change in his will, the law deems it to be done for the purpose of determining its character, and the rights of parties to it. 1

Infants are not regarded capable of managing their property, or of determining whether a change from one kind of property to another is for their interest. The general rule, both in England and this country, has been in dealing with the property of infants, to impress it during minority with its original character, whatever change may have actually occurred. Whether this rule is based upon the old idea of the inviolability of legal titles, or to prevent the injustice to heirs and next of kin, of changing the power of disposition, or to protect the property from conversion by improper influences on the part of either class, it is not important to inquire. (Story’s Eq. Juris., § 1357, and note 5 ; 19 Vesey, 122.)

The Court of Chancery has no inherent, original jurisdiction to direct the sale of infants’ real estate. That authority is derived solely from the statute (Rogers v. Dill, 6 Hill, 415), and the statute authorizing such sales declares that, the proceeds shall be deemed real estate of the same nature as the property sold.” (2 R. S., § 180.) If these proceeds had resulted from a sale of the interests of the infants under this statute, no question could have been made as to the character of this fund. But it is claimed on behalf of the petitioner that the same rule does .not prevail when the interest of infants is sold in partition proceedings instituted by other tenants in common, who have a right in their own behalf to demand partition or sale.

The Court of Chancery entertained jurisdiction in partition at an early period in England, partly to meet cases not cognizable in courts of law, and have continued ever since to exercise such jurisdiction, although the jurisdiction of courts of law have been greatly enlarged by statute. (Story Eq. Jur., §§ 646 to 648.)

Until the statute of the thirteenth and fourteenth Yict., the interest of infants in real estate was not sold absolutely in such proceedings, but they were allowed a day after they attained twenty-one years of age to show cause against the decree. (Id., § 652.) Since the statute, the infant is declared a trustee of the property, and the court is authorized by this statute to dispose of all interests held in trust. (Brown v. Wright, 3 Eng. L. and Eq., 190.) But I can find no authority departing from the rule before adverted to, of impressing the proceeds thus obtained with the character of real estate until the majority of the infant.

Although both equity and common-law com’ts exercised a jurisdiction in partition, yet they are confined in conducting the proceedings in this State to the provisions of the statute, and it is urged that the omission in this statute, of the provision in the statute relating to sales of infants’ estates, preserving the fictitious character of the proceeds, is significant of an intent to convert the property from real to personal. I cannot assent to this position. The power to sell infants’ real estate is the creation of the statute, and in conferring this new power it was deemed proper to apply the same rule which prevailed in other cases. The statute simply adopted the established principle to this class of cases, which had been uniformly applied to other cases, when the court exercised jurisdiction over the property rights of infants, and-its adoption is evidence of the existence of the principle. The same reason did not exist for such a declaration in the statute regulating proceedings in partition, because the' rule applicable to such and like proceedings had existed long prior to the passage of the statute, and there is nothing in the statute repugnant to the rule. A sale is not the primary object of proceedings in partition. The power to sell is incidental, and can he exercised only when partition is impracticable. There was no necessity in this case to sell for the benefit of the children. If a division could have been made, the share of Mrs. McOoy and the other infants would have remained in real estate, and there seems to be a manifest impropriety in such a case in changing the character of the property any farther than actual necessity demands. There is more reason for preserving that character when sold in partition than upon a direct application to sell, because the interest of the infant requires it. At all events, there is no reason for making this an exception to the rule applied in other cases of the disposition of infants’ property.

An infant may dispose by will of personal property at eighteen, but cannot of real until twenty-one; and as there is no recognized superior equity between heirs and next of kin during the life of the owner, courts should be vigilant not to permit the interests of either to be prejudiced.

The learned counsel for the petitioner insists, that the weight of authority is against this view, but the cases cited, especially in this State, are far from being decisive.

In 16 Barb., 531, it does not appear that the heirs who died in the lifetime of the widow were infants at their death. In 3 Barb. Ch., 169, the property was converted by operation of law during the life of the wife and after she was of full age, for aught that appears in the case; and in the ease in 10 Paige, 196, it is doubtful whether the point was involved. On the other hand, the ease in 1 Duer, 286, involved the disposition of surplus moneys, arising upon the foreclosure of a mortgage, and contains well considered opinions, both by the referee and court, in favor of the principle of preserving the character of the property, and there is more reason for claiming a conversion in such a case than in this, because it might be said that the sale was made in. pursuance of a power contained in the mortgage.

The authorities cited from other States seem to favor the views of the petitioner, but to what extent they may have been controlled by the statutes of the respective States I have not deemed it important to investigate. The rale should be uniform and definitely settled, as we think, in accordance with the statute relating to sales of infants’ estates.

This conclusion leads to a modification of the order of the General and Special Terms, so as to grant the motion as to the proceeds of the sale of all of the real estate except the homestead, and to deny it as to the proceeds of that.

All concur.

Ordered accordingly.  