
    William B. Royce et al., Resp’ts, v. Jennie C. T. Adams, Appl’t.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1890.)
    
    1. Will—Power oe sale.
    A power of sale in a will conferred upon the executors, or “whoever shall execute this, my will,” is not a personal trust or confidence, hut can. be exercised by any person lawfully appointed to execute the will, e. g., trustees appointed to succeed executors and trustees who have resigned.
    3. Same—Code, § 3818.
    Although § 3818 mentions only a sole testamentary trustee, it was the-intention of the section to provide for a case where all the testamentary trustees died or resigned, and there was no purpose to confine it to the case of a sole testamentary trustee.
    . Appeal from judgment of the supreme court, general term, second department, rendering judgment in favor of plaintiff upon submission of controversy.
    
      Alton J. Vail, for app’lt; W. J. Groo, for resp’ts.
    
      
       Affirming 32 N. Y. State Rep., 699.
    
   Earl, J.

The testator, Henry R. Low, devised and bequeathed to his executors all his real and personal estate upon the trusts mentioned in his will, and authorized them to sell, lease or otherwise convey or dispose of any of his real or personal estate, and to give a good title thereto. Before the estate was completely settled all the executors and trustees named therein resigned. Thereafter by an order of the surrogate's court, and subsequently by an order of the supreme court, both properly made, these plaintiffs were appointed trustees under the will in the place of those who had resigned; and the question is whether they have, authority to execute the power of sale contained in the will.

While it is not expressly provided what shall be done with the proceeds of the sales of property, it is implied that they must be held and disposed of for the purposes of the will.

Here the trust survived the resignation of the testamentary trustees, and hence the surrogate had authority to appoint the new trustees under § 2818 of the Code, which provides that when a sole testamentary trustee dies, or becomes a lunatic, or is by a decree of the surrogate’s court removed or allowed to resign, and the trust has not been fully executed, the surrogate’s court may appoint a successor, unless such appointment would contravene .the express terms of the will.

It is true that this provision mentions only a sole testamentary trustee, but the language of the whole section shows that it was the intention to provide for a case where all the testamentary trustees died or resigned, and that there was no purpose to coniine it to the case of a sole testamentary trustee. lienee these plaintiffs could base their authority to act as trustees under the will, and to execute the power therein conferred upon the testamentary trustees, upon their appointment by the surrogate.

But if that appointment was insufficient to clothe the plaintiff with a valid authority and the power of the testamentary trustees, it cannot be doubted that they received such authority under their appointment by the supreme court. It is familiar law that upon the death of an original trustee the trust devolves upon the supreme court, and it has jurisdiction to appoint new trustees to execute the trust. 1 R S., 730, § 71; Id., 731, § 72 ; Delaney v. McCormack, 88 N. Y., 174; Farrar v. McCue, 89 id., 139; Mott v. Ackerman, 92 id., 539; Cooke v. Platt, 98 id., 35; Matter of Hawley, 104 id., 250; 5 N. Y. State Rep., 620; Greenland v. Waddell, 116 N. Y., 243 ; 26 N. Y. State Rep., 667.

The power of sale is by the will conferred upon the executors, or “ whoever shall execute this my will,” and hence the power is not a personal trust or confidence, but it can be exercised by any person lawfully appointed to execute the will.

The plaintiffs, therefore, have power to convey the real estate in question, and can give a good title thereto, and the judgment .should, therefore, be affirmed, with costs.

All concur.  