
    Emily Martin and others vs. Andrew Martin, executoi &c., impleaded with Lynch, executor.
    A testator devised and bequeathed the residue of his estate, real and person, al, to his five children, to be equally divided between them, share and share alike; the shares of such as were females to be held and enjoyed by them ' respectively as separate estates, with power to sell arid dispose of the same as if sole; and he authorized his executors to sell and dispose of all his real estate, either at" public auction or by private contract, on such terms as they should think proper; and until such sale to let or lease the same, and receive the rents or income thereof; to keep the buildings in repair ; and in case of loss or damage by fire, to apply the insurance money to the rebuilding or repairing of the buildings.
    
      Held, 1. That there was no express devise of the real estate to the executors.
    2. That it was not necessary to hold that the executors took any estate in the lands; inasmuch as all the duties imposed upon them by the will — such as selling or leasing the lands, receiving the rents, repairing or rebuilding— could be performed by them under the authority conferred by the will, treated as a power in trust merely.
    3. That the testator did not contemplate any trust; there being no sufficient object for a trust indicated.
    
      4. That whether the testator intended to vest the estate in trust, or to create a power in trust for its management, it would operate only upon the shares of such of his children as were infants, at the time of his death, and would continue only, as to each share, during the infancy of the children respectively.
    "Where executors have the power to sell the shares of infant devisees under the directions of the will, a court of equity has the power to control its exercise, when a sale is manifestly opposed to the interest of- the devisee.
    A judge, acting zs parens patrim, can determine, from the facts proven, whether it is for the interest of the infant that his real estate shall be converted into currency.
    
    APPEAL from a judgment ordered at a special term, on a trial before the court without a jury. The complaint was filed by the five children of Thomas Martin, deceased, against his executors, Andrew Martin and Peter Lynch, to obtain a judicial construction of the will of the deceased, particularly the fourth section. The testator, by the first clause of his will, gave an annuity of $500 to his mother, and after her death the real estate set apart for the purpose of producing'such annuity was devised to the same persons, and in like shares or proportions as was afterwards directed with respect to the residuary estate. The 2d, 3d and 4th clauses of the will were as follows:
    
      “ Second. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, as .well that which I now have as that which I may hereafter acquire, and die seised or possessed of, or entitled to, unto my five children, Eosina, Catharine, Emily, Frances and Thomas, to be equally divided between them, share and share alike. If either of them, my said children, shall die before me, leaving issue, I devise and bequeath the part or share given to him or her so dying, unto his or her issue. If, however, either of them, my said children, shall die before me without leaving any issue surviving me, then my will is, and I do hereby direct, that the part or share of my said estate, given to him or her so dying, without leaving issue, shall go to the survivor or survivors of them, my said children, and the lawful issue of such of them as shall die before me, leaving issue, such issue to take the part or share his, her or their parent or parents would have been entitled to if living.
    
      Third. It is further my will that the several shares and portions of my estate which shall be taken by females, shall be held and enjoyed by them respectively as separate estates, free from the control or interference, and not subject to the debts or engagements of any husband, with power to sell and dispose of the same in the same manner, and with like effect, as if respectively sole and not married.
    
      Fourth. I do hereby authorize my executors hereafter named, or such of them as shall qualify and take upon themselves or himself the execution of this my will, and the survivor and survivors of them, to sell and dispose of all my real estate, either at public auction or by private contract, at such time and on such terms, either for cash or part cash, and part on bond and mortgage, as my said executoi-s, or the survivors of them, shall think proper, and until such sale to let or lease the same for one or more years, and receive the rents and income thereof; and out of such rents or income, to keep the buildings thereon in repair, and also in sured against loss or damage by fire; and in the event of any loss or damage by fire, with the money recovered on any policy of insurance, or with any other moneys belonging to my estate, to rebuild or repair such buildings.”
    The testator appointed Andrew Martin, Thomas Martin and Peter Lynch executors of his will. The will was dated April 16, 1859; the testator died August 12, 1862; and the will was admitted to probate September 16, 1862, and letters testamentary were issued to the defendants.
    The complaint averred that the testator left a large real and personal estate, and that his debts were comparatively small, so that they could be discharged out of the personal estate; that all the debts have been paid out of the proceeds of the personal estate; that the estate is worth over $200,000, and it consists chiefly of tenement houses; that the collection of the rents is very precarious; that the houses are continually requiring repairs, and large amounts of money are continually required to pay for repairs, taxes and insurance. That the plaintiffs had agreed among themselves to collect the rents with the assent of Peter Lynch, one of the executors, but that Andrew Martin denied their right so to do; that the other executor admitted their right to collect the rents. They insisted that the will conferred on the executors no legal or valid power in respect to the real estate, and that, even if there was a valid power, under the circumstances it was extinguished. The plaintiffs demanded judgment, that it might be adjudged that the plaintiffs are the owners in fee simple of the real estate of which the testator died intestate, and that, under the will of the said testator, the executors thereof took no estate or interest therein, and have no right or authority to enter into or upon the same, or to convey, let or lease the same, or to collect the rents, issues and profits thereof, hereafter to accrue and become due since the death of the testator, and from interfering with or exercising any control over the said real estate, or hindering, obstructing or interfering with the tenants of the premises, or with these plaintiffs, or either of them, in the use, occupation and enjoyment of -the said premises, or the receipt or collection of the rents thereof. And that if it should appear to the court that a valid power was created hy the said will, and conferred upon the executors, then that the said power might, by the judgment of this court, be extinguished, and that an injunction to the effect before mentioned might be issued during the pendency of this litigation; and that if necessary, a receiver might be appointed of the said real and leasehold estate, and that the defendant Andrew Martin might be removed from his office as one of the executors of said will; and for general relief.
    The answer of the defendant Andrew Martin, executor, &c., alleged that he was one of the executors of the will; that there were debts existing against the estate; that a large amount of debts were outstanding against the estate; that no inventory at the time of the answer was filed by the executor Lynch, (who had usurped all the authority of the executors ;) that he had no notice or knowledge of the intention of the plaintiffs to take the real estate in specie, or that they had so stated before the commencement of the action; that no such election could have been made, as Thomas Martin, one of the parties to the election, was and is a minor, and incapable of making such election; and the defendant denied, on information and belief, that Lynch, his co-executor, had acceded to the justice of the claim of the plaintiffs. The defendant insisted, that the proof showed that no inventory was filed until after the answer was put in; that there are supposed claims to about §30,000; that the advertisement for claims against the estate was not published until the month of March, 1863, (but a few months before the trial.) No answer was put in by the defendant Lynch. A receiver was appointed, on motion of the defendant Martin.
    On the trial of the cause, the plaintiffs abandoned that part of the complaint in which they prayed for the. removal of the defendant Andrew Martin.'
    The following facts were found hy the justice before whom the action was tried, viz: That, at the time of the execution of the will, the wife of the testator was dead, and that his mother, who was then living, died before him, and that at the death of the testator he left him surviving the plaintiffs, wlio were his only children and heirs at law. That at the date and execution of the said will, three of the plaintiffs, Thomas, Emily and Frances, were infants, under the age of twenty-one years, and that all of the plaintiffs were of full age at the death of the testator,' except Thomas, who would attain his majority on the — day of August, 1863. That the testator died seised in fee of a large real estate situate in the city of Few York, consisting of houses and lots of land, which then was, and still is, of the value of about one hundred and seventy-five thousand dollars ; and that he also died possessed of a leasehold estate or interest in certain premises situated at the corner of Oak and Catharine streets, in said city, for a term of years which will expire on the first day of May, 1884; and that he also died possessed of a leasehold estate or interest in certain premises on the corner of Baxter and Canal (late Walker) streets, in said city, for a term of years which will expire on the first day of May, 1867, and that such leasehold estate or interests were at the time of the death of the testator, and still are, together, worth about the sum of thirty-eight thousand dollars; and that, in addition to the above, the testator left personal property of about the value of sixteen thousand dollars. That the total amount of the indebtedness of the testator which has come to the knowledge of the executors will not exceed twelve thousand dollars, all of which has been paid, with the exception of claims to an amount less than one thousand dollars, the justice of lohich was disputed. That the assets in the hands of the executors, including the said leasehold estates or interests, will be ample and more than sufficient to pay all the debts of the testator, and that it will not be necessary to sell any part or portion of the real estate of which the testator died seised in fee, for the purpose of paying such debts. That the.real estate of which the testator died seised in fee yields an average annual net income of about ten per cent, and that the leasehold premises yield an average net income of about the same per cent, and that irrespective of the power given by the will to the executors, to sell all the testator’s real estate, there is not now any apparent reason why the real estate of which the testator died seised in fee, or any part-thereof, should be sold. That the interest of the plaintiffs, severally, will be promoted by permitting them to take and hold the real estate of which the testator died seised in fee, in specie, without any exercise in respect thereto of the power of sale in the will. That from and after the death of the testator, until a receiver was appointed in this action, the plaintiffs collected and received the rents, issues and profits of the said real estate,, of which the testator died seised in fee. That the executors have not sold or disposed of the real estate of which the testator died seised or possessed, or any part thereof. That the plaintiffs are, and each of them is, desirous of taking said real estate, of which the testator died seised in fee, in specie, and have -declared their election so to do. That the defendant Andrew Martin, as one of the executors named in the will, claimed and insisted, as in the complaint alleged, that the said real estate was in and by said will devised to the executors, and that they had the right to let or lease the same, and to collect the rents thereof, and to sell the same, and that the plaintiffs had no right to collect or receive the rents of the said real estate. That the exercise of the power of sale given by the will to the executors was not necessary or expedient, in respect to the real estate of which the testator died seised in fee; that if such real estate, or any part thereof, should be sold and conveyed by the executors under said, power of sale, such sale and conveyance would and must be apparently for the mere purpose of paying over the purchase or consideration money to the plaintiffs.
    His conclusions of law were: First. That there is in the will no devise to the executors, expressed or implied. That the testator’s estate in the lands of which he died seised in fee, on his death, did not vest in his executors, but in the plaintiffs, under the direct devise to them in the will. Second. That the power given, in the fourth clause of the will, to the executors, to let or lease the testator’s real estate, and receive the rents or income thereof, and out of such rents or income to keep the buildings in repair and insured, until such real estate should be sold by the executors, was and is merely subsidiary to the principal power of sale given in the same clause to the executors. Third. That such power of sale was and is valid; but that the plaintiffs, under the circumstances, had the right to elect to take the lands of which the testator died seised in fee, in specie. Fourth. That the court can and ought to give force and effect to such election, as to the infant plaintiff, Thomas Martin. Fifth. That upon such an .election, the power of sale as to such lands failed. Sixth. The purpose of the power of sale as to such lands having thus failed, the defendants, the executors, should be perpetually enjoined and restrained from exercising such power of sale as to such lands, and from letting or leasing the same, or any part thereof, and from interfering in any manner with the plaintiffs’ possession thereof, or with the plaintiffs’ right to collect and receive and enjoy the rents, issues and profits thereof. 'Seventh. That the plaintiffs were entitled to the moneys collected and received by the receiver in this action, and the receiver should render his accounts to the court, and pay "over such moneys to the plaintiffs in this action. Eighth. That the plaintiffs were entitled to a judgment in accordance with these conclusions of law.
    
      John McKeon, for the appellant.
    The court, in finding the facts, erred in the following particulars: That the personal estate was sufficient to pay all indebtedness. The examination of Lynch, one of the executors, shows that the leasehold estate was worth about $30,000, while the proof shows there was a claim for $30,000 of which Lynch, the co-executor, had heard, and not of other claims in reference to which he was questioned, but knew nothing. It was shown that advertisements for claims were never made until March 24, 1863, several months after the complaint was served. It also appeared that, at the time of the trial and judgment, Thomas Martin was still a minor. The main difference between the plaintiffs and defendant Martin is, whether the executors took a legal estate in the lands; whether there was a trust for specific purposes, some of which remain unfulfilled; or whether there was a simple power of sale which has failed, as the object of the power had been fulfilled.
    I. The defendant Andrew Martin, executor, insists that the executors took a legal estate in the lands; that there was a trust under the will conferred on the executors, for specific purposes. (1.) To set apart certain houses or leases, and out of the rent to pay testator’s mother $500 annually during her life, and to pay the surplus of the rent of said house, and divide it amongst his children. (2.) To sell and dispose of his real estate, either at auction or private sale, and to take part cash, or part bond and mortgage, as they shall think proper. (3.) And until such sale, to let or lease the same, and to receive the rents, and out of such rents to keep the buildings in repair and insured against loss by fire; and in-the event of receiving money from insurance, with it to build and repair such buildings. The defendant Martin insists that the executors took more than mere power; that there was a trust or confidence conferred on the executors. The disposition of a trust is a confidence, an obligation, a duty arising out of confidence to apply property faithfully, according to such confidence. (Burrill’s Law Dict. tit. Trust.) No formal words are necessary to make a trust; any words showing that the testator placed confidence in the executor that he would dispose of certain rents for certain purposes will create a trust. (4 Kent’s Com. 305.) Trustees empowered to receive rents and apply them to the use of a-person for life, take an estate for life. (2 Barb. S. C. R. 53.) A valid trust as to real property vests the legal estate in the trustees, and is continued in them so long as any of the purposes of the trust remain unexecuted, and the cestui que trust can take no estate in the land during the continuance of the trust. (2 Barb. Ch. 229.) This is not a mere power under the will. Power is an authority distinguished from an estate. This will gives an estate to the executors, as the executors can not only sell "but lease, to effect certain purposes. It is a trust. Where something is to be done which makés it necessary for the executors or trustees to have the legal estate, such as the payment of the rents and profits to another’s separate use, or of debts of the testator, or to pay rates or taxes, or to keep the premises in repair or the like, the legal estate is vested in them, and the grantee or devisee has only a trust estate. (2 Black. Com. by Sharswood, in notes, 335; citing 3 Bos. & Pul. 178, 179; 2 Term R. 444; 6 id. 213 ; 8 East, 248 ; 12 id. 415.) Suppose in this case the building should be destroyed by fire, who could execute the trust as to repairing búildings, except the executors named in the will ?
    II. A mere power would not carry out the views and purposes of the testator. The trust imposed in the executors to lease could not be carried out under a mere power. The case of Brewster v. Striker, (2 N. Y. R. 33, 34, per Jones, J.) sustains this doctrine. In that case the devise was made to certain parties (named) as in this present case, and yet the court held that there was a trust. ;
    III. The cases cited by the court below, showing that the power under the will has failed, do not cover the present case. In Jackson v. Jansen, (6 John. 73,) the court decided that the power to sell failed, by the death of the widow happening before a sale was made. It was for her sole benefit that the power was created. In the present case the will has several objects in view, and particularly the keeping in repair and insuring the houses during the minority of the children of the testator. In Sharpsteen v. Tillou, (3 Cowen, 651,) the court put their decision on the ground that the objects of the testator having been in a great measure defeated, and his intentions in giving the power frustrated, the power itself granted by the will failed, and a sale was void, so far as it depended on the power. In the present case, the intentions and objects of the testator still remain to be carried out. Under these very cases, the rule deduced from them is, that the purposes of a testator in giving a power by his will must be ascertained from all the provisions of the will, and the objects of the power must be considered in connection with the poioer itself. Even under this rule the power has not failed, as some of the provisions of the will in connection with the power still remain to be executed. The court had no power to make election for an infant; the court erred in allowing his declaration to be admitted in evidence. If the court was to he governed by the wishes of the infant, it should have referred it to a referee, to inquire whether his interests would be promoted by taking the land in specie, and whether he made the election voluntarily. The power of a court to make a selection for an infant, as taking real estate in specie, is also questioned. The power of a court of chancery to protect the rights of an infant from adverse interests (as parens patries) was questioned for a long time. To select estate in specie is, in fact, making an agreement or contract for an infant, of the highest character for the infant; and the court should hesitate to make such selection or agreement, as the infant’s agreements would be voidable at his pleasure, on his arriving of age. (2 Story’s Eq. 1334, 1337.)
    IV. By the court interfering with the executors, the whole management of the estate will be in violation of the provisions of the will, and the estate may be thrown into confusion. As the will is interpreted hy the plaintiffs, the executors have a simple power, but the power can not be executed by one of the parties; an infant, as an infant, can not execute a power. . An infant’s disability arises not from want of reason, but from want of capacity. In a case where an infant was 17 years of age, it was insisted that the infant was then as discreet as if he was 21 years of age, and the court might judge whether or not the infant had discretion to execute a power. “This,” says Lord Hardwick, “is of such latitude and extent, that I own that I should be very sorry as presiding in a court of justice to be entrusted with it, for there is a variety of opinions of people’s judgments.” (Macpherson on Infants, 92, 93, 95. 1 Ves. 298, 306.) The evidence shows that no advertisement had been made for creditors until March, 1863, and that since Lynch, the executor, advertised, he has heard of a claim of $30,000. Is it not safer to allow the regular time to elapse for claims before this court will interfere.
    Y. The only safe course for the court is to dismiss the complaint, as an infant is concerned, on the following grounds: (1.) That the infant was within a few months of being of age, when the estate could be properly and easily settled and without question. (2.) That the executors now acting are not charged with insolvency or impropriety of conduct as guardians. (3.) That the will gives full authority to lease for one or more years. (4.) That the interests of all parties are, for the present, in a receiver’s hands, where they can remain with safety for a few months.' (5.) That it is evident that the proceeding is, in fact, a conspiracy between the plaintiffs, one of whom is a minor, and one of the defendants, the co-executor of the defendant Martin, to remove a co-executor from the discharge of his duties as executor.
    YI. If the court should determine in favor of the plaintiffs, the costs and expenses of the defendant Martin should be paid out of the estate. The proof does not show that the executor Martin ever was asked to deliver the estate in specie, or that it was ever demanded by the plaintiffs, until the filing of the complaint. The good faith of the co-executor Martin can not be questioned.
    
      John E. Burrill, for the respondents.
    I. By the second clause of the will, all the real estate of the testator is devised to his children, and they took an estate in fee thereunder.
    II. The executors took no estate in the land, but at the utmost had a mere power of sale. 1. There is no devise to the executors, either express or implied, but, on the contrary, there is a direct and express ' devise of the real estate to the children. 2. The purposes for which the executors are directed to receive the rents and income, viz. to insure, repair and rebuild, are not such as would support a trust to receive rents and profits under the 55th section of the statute, which provides that express trusts to receive rents and profits are valid only when such rents and profits are to be applied to the use of some person during life, &c. 3. if or does the direction to sell the land create a valid trust, because, by the same section, such trusts are sustained only when the sale is to be made for the benefit of legatees, or to satisfy some charge upon the land. (2 R. S. 137, § 55, 4th ed. 1 id. 728, § 55, 2d ed. 2 id. 140, §§ 68, 70, 71, 4th ed. 1 id. 729, §§ 56, 58, 59, 2d ed.)
    
    III. Conceding that the executors have a power to sell, then, 1. The estate vests in the children, subject to the exercise of the power. (2 R. R. 140, §§ 68, 70, 71, 4th ed. 1 id. 729, §§ 56, 58, 59, 2d ed.) 2. The children are' entitled to the proceeds of the sale, if the power be exercised, and, if they choose, may elect to take-the estate in specie. 3. Even though the power be imperative, (which may well be doubted,) inasmuch as the object which the execution of the power was intended to secure has failed, and no longer exists, and the power has become purposeless, its exercise should be restrained, and especially so when it will work a positive injury to those for whose benefit it was intended. (Jackson v. Jansen, 6 John. 81. Sharpsteen v. Tillou, 3 Cowen, 659.)
    IV. The court was right in acting upon the election of Thomas Martin. 1. Thomas, being an infant, had a right to call upon the judge in equity, as parens patriae, to elect for him, and give effect to his reasonable wishes. 2. Though an infant in law, Thomas was a full grown adult, just on the verge of majority, and his wishes were entitled to greater and different consideration than if he were a person of tender years. 3. The testator had confidence in his judgment and discretion, as was exhibited by his appointment as guardian and executor.
    V. Since Thomas came of age he has ratified the election made before he attained his majority, and has sanctioned the action of the court in his behalf.
   By the Court,

Leonard, J.

There is clearly no express devise of the landed estate of the testator to his executors. A devise of an estate in lands has been implied when acts and duties to be performed under' the express directions of the will would otherwise fail; and in such a case it has been held that the intention of the testator to devise the estate to trustees is manifested, and that they take the title by implication.

In the present case it does not appear to be 'necessary to hold that the executors take any estate in the lands. They are authorized to sell, lease, receive rents, repair, and in case of loss or damage by fire, to apply the insurance money to rebuilding. All of these duties can be performed by the executors under the authority conferred by the will, treated as a power in trust merely.

The testator did not contemplate any trust. This is clear from the fact that no application is made by. the provisions of the will in respect to the large fund which would necessarily accumulate in their hands from income. The directioiis contained in the will would apparently absorb but a small portion of the income. A trust is created, usually, for some express object'; and is to be continued only till that object is attained, or the period limited therefor has expired. Here there is no object for a trust indicated, unless it be supposed that repairing the property is sufficient.

But whether the testator intended to vest the estate in trust, or to create a power in trust for its management, it will operate only upon thei shares of such of his children as were infants at the time of his death, and continue only as to each share during the infancy of the children respectively. By the second section of his will his whole estate passed to his children at the death of the testator. It would be inconsistent with this provision to hold that the title to any part of'the estate was vested in trustees, and equally inconsistent with their rights as owners for the executors to exercise a power to sell, &c. after the children had reached their majority, except for the purpose of paying debts.

The judge has found that there are no debts, except a very small amount, not equal to the amount of personal property. This fact seems to be sustained by the evidence. It is true, one of the witnesses had heard of a large claim, but its existence as a debt was not proved. Under such circumstances it can not be doubted that the children had a right to take and hold the land.

The testator appointed his executors the guardians of his minor children, and I think he intended them to act for their interest in selling the _ land, combining the exercise of the .power to sell with their duty as guardians. All the children had, however, reached their majority before the testator died, excepting only his son Thomas. When this action was commenced, Thomas was over twenty years of age, and at the trial he wanted some three months only of his majority.

It appears to be pretty clear that the defendants, Andrew Martin and Peter Lynch, were not guardians of Thomas Martin; for the same clause of the will which appoints Andrew and Peter guardians, also appoints Thomas a guardian over himself. As to Thomas Martin, the guardianship was inoperative under this provision.

But assuming that Andrew Martin had the power to sell the share of Thomas under the directions of the will, the court has the power to control its exercise when a sale is manifestly opposed to the interest of Thomas.

The judge at special term acting as parens patriae, could determine from the facts proven whether it was for the interest of the infant that his real estate should he converted into currency. Why, it might be well asked, could Andrew Martin choose for the infant in this respect better than the judge ? Has he more intelligence? Is he more disinterested ? It can not be doubted that the property of an infant in 1863 was safer, invested in land, than it would be if exchanged for the currency then in use.

Whatever may be the answer to these questions, it is of very little practical importance to reverse the decision even if it could lawfully he done, as all the children, including Thomas, are now of age, and the executors can no longer exercise the power of sale under the will.

The exceptions taken to the refusal of the judge to admit evidence as to the habits of Thomas Martin in respect to temperance, are of no moment, as the evidence was immaterial.

The objection as to the admission of the written statement of the wishes of Thomas Martin, in respect to the sale of the real estate, is not well taken. Ho argument can be urged against its admission, except its want of materiality. If the evidence had been excluded, it does not appear that the judge could have arrived at any other decision of the case.

The only conclusion to be drawn from the statement is, that Thomas thought very much as the judge did. As evidence, the statement had no operation.

Probably the defendants acted honestly in their wish to sell; and in defending this action I think their costs should be allowed them out of the fund.

[New York General Term,

November 7, 1864.

The judgment should be affirmed, and -the costs of both parties on the appeal paid from the estate.

Leonard, Geo, G. Laniard and Sutherland, Justices.]  