
    (90 Hun, 99.)
    SMITH v. CHASE et al.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Ejectment—Title to Support—Testamentary Power op Sale.
    Testatrix directed her executor to sell her land and personalty, and gave to her children an equal share in the proceeds. Reid, that no title to the land vested in the executor, and therefore he could not bring ejectment for its recovery.
    3. Deed—Construction.
    A decedent transferred to defendant the fee to certain premises, but reserved the use thereof during life, and the power to sell the property, if necessary, and provided that, in event the power of sale was not executed, the title should remain in defendant. Held, that defendant took a fee to the land on decedent’s death without executing the power.
    Appeal from judgment on report of referee.
    Ejectment by Edwin Smith, as executor of the last will and testament of Eliza A. Evans, deceased, against Mary A. Chase and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.
    William H. Henderson, for appellant.
    George Cole, for respondents.
   DAVY, J.

This is an action of ejectment to recover possession of a house and lot situate in the village of Salamanca, in the county of Cattaraugus, brought by the plaintiff, as executor of the will of Eliza A. Evans, deceased. The appellant contends that Mrs. Evans died seised of an estate in fee simple in the house and lot referred to, and that the power of sale, as well as the title to the premises, became vested in him by virtue of the provisions of her will. It appears from the evidence that the testatrix died in February, 1887, leaving five children, of whom the defendant Mary A. Chase is one, and also leaving a last will and testament in which she named the plaintiff as sole executor. It also appears that, in 1874, the testatrix assigned the property in question to her daughter Mary A. Chase, reserving, however, the right to occupy it with her husband during their lifetimes. In 1876, Mrs. Evans and her husband released and surrendered to Mrs. Chase the right to occupy the house and lot. Thereafter, and in the year 1877, Mrs. Chase executed and delivered to her mother an instrument in writing, of which the following is a copy: “For value received, I hereby sell, assign, set over, and transfer to Eliza A. Evans, of Salamanca, N. Y., all my right, title, and interest in and to the within lease, and all buildings situate thereon, with all the advantages to be derived therefrom.” And contemporaneously therewith, and as a part of the same transaction, and in consideration of the last assignment, Mrs. Evans gave back an instrument in writing, in which she assigned and transferred to Mrs. Chase the same premises, reserving and retaining, however, the use of the same for her benefit, use, and support during her lifetime, and reserving the right to rent, or to sell and dispose of, the same, at her option, and in the event that the avails arising from the sale of the premises were not used by her during her lifetime, then it should belong to Mrs. Chase. After Mrs. Evans’ death, which was in February, 1887, the plaintiff leased the premises in controversy for a short time, but when they became vacant Mrs. Chase took possession of them, and refused to vacate or remove therefrom, for the reason, as she contends, they belong to her under the contracts made between her and her mother of July, 1877.

If we were to assume that the title to the premises was in Mrs. Evans at the time of her death, we do not see, even then, how the plaintiff can maintain this action. The provisions of the will, so far as it bears upon the question under discussion, are contained in the first and second paragraphs, which read substantially as follows :

“I give my parlor furniture, the same that I had of Leozone Evans, to my daughter Mary A. Chase, wife of Mortimer Chase, of Salamanca. I direct my executor to sell and. turn into money my house and lot on State street in said village of Salamanca, and also all the personal property and household furniture that I may have at the time of my death, excepting the parlor furniture above stated.
“Second. I give and bequeath, equally, to my five children, all my property, namely, the proceeds of the sale of the said house and lot, also the proceeds of the salé of my personal property, also the money I have in the bank at the time of my death, or in notes or other security.”

It is apparent from the provisions of this will that no trust estate in the house and lot. in question was vested in the plaintiff as executor. The main purpose of the testatrix, as appears from the context of the will, was to give her estate, remaining after payment of her debts, equally to her five children. She simply imposed upon the executor the duty of selling the property and making the division. It has been repeatedly held that a power of sale in the executor for the purpose of distribution does not vest him with title to the real estate. The provisions of the will do not create a valid express trust under the statute. The power conferred might be exercised as a power in trust. But, in such a case, the statute expressly provides that the title to the real estate shall descend to the heirs at law, subject to the execution of the power of sale. 1 Rev. St. p. 728, §§ 55, 58, 59. The language of the will shows clearly that the testatrix did not even intend to create a trust. There was'no valid devise of the house and lot to the executor, or to any other person, Cooke v. Platt, 98 N. Y. 35.

It is an elementary rule, in an action of ejectment, that it is only the legal rights of the parties, as distinguished from their equitable rights, that are to be considered, and the plaintiff must recover, if at all, upon the strength of his own title. It was incumbent upon him to show upon the trial that he had the title, either absolutely or in trust, and that he was entitled to the possession of the premises at the commencement of the suit. The title to the premises must be in somebody, and if not in Mrs. Chase, under the assignment from her mother, then it must vest in the heirs of the testatrix, and they alone have a right to the property, and the exclusive right to maintain an action in ejectment for its possession. The writing under which Mrs. Chase claims title to the premises has received a construction by this court in another action between the same parties, reported in 21 N. Y. Supp. 896. In that action the plaintiff, as executor, sought to foreclose a mortgage executed by the defendant, Mary A. Chase, to the testatrix. Mrs. Chase contested the foreclosure on the ground that the consideration money for the mortgage was derived from the sale of a portion of these premises in question, and that, under the contract, they belonged to her. The general term evidently reached the conclusion that the instrument was a valid contract. Mr. Justice Lewis, in delivering the opinion of the court, said that “It was the duty of the executor to collect the money due upon the mortgage, and if, after the settlement of the estate, any of the money should be left, the defendant would be entitled to it under the contract.” The intent of Mrs. Evans, as expressed in the written assignment, is very plain. She transferred to Mrs. Chase the fee to the premises, but reserved the use thereof during her lifetime, and the power to sell the property, if necessary, but, in the event that the power of sale was not executed, then the title should remain in Mrs. Chase. We are of the opinion, therefore, that, under the two written instruments referred to, the fee to the premises in question vested absolutely in Mrs. Chase upon the death of her mother.

The judgment, therefore, should be affirmed, with costs to be paid out of the estate of the testatrix. All concur.

Judgment affirmed.  