
    Kortright v. Storminger.
    
      (Supreme Court, General Term, First Department.
    
    June 19, 1888.)
    1. Powers—Testamentary—Conveyances by Executors.
    Testator, by will, directed that all his property, both real and personal, should be-equally divided between his wife and children; his executors to portion the same1 into as many equal shares as might be necessary to give each beneficiary two shares-thereof, and convey one of such shares to each beneficiary in fee, and retain the-residue in trust for their benefit, keeping separate accounts, and pay over the income on the respective shares to each beneficiary during life, the wife’s portion remaining in their hands at her death to be divided, etc. The executors were given full power to convey any and all of the estate, and invest the proceeds upon the-same trusts. Meld, that the will authorized the executors to convey at any time the-fee, and not simply a life-estate, in the portion set apart for the use of the wife during her life-time.
    0. Trusts—Renunciation by Trustees under Will—Power oe Successors.
    The executors of such will having renounced and refused to qualify, the surrogate: appointed testator’s wife and one 0. administrators with the will annexed. Thereafter in partition suit, at the instance of the wife, the one-sixth portion of the estate was set oil to her in fee,audit was adjudged that the trusteeshold another one-sixth portion for her benefit during her life, under the trusts of the will, and such portion was set off to the trustees by commissioners. C. was appointed trustee by the-court, and duly qualified, and was declared to be clothed with the powers of the original trustees,' but subsequently resigned his trust; K. being appointed in his-stead, and receiving a conveyance of all the farmer’s interest as trustee in testator’s, estate. Held, that the power of the original trustees to sell real estate of testator-was not a personal trust,—the right of sale not being restricted to the event only that the particular persons named as trustees should deem it best for the estate and under 1 Rev. St. Ñ. Y. 730, § 68, providing that, “upon the death of the surviving trustee of an express trust, the trust-estate shall not descend to his heirs, nor-pass to his personal representatives, but the trust, if then unexecuted, shall vest in the court of chancery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the court, ”—such power passed to the trustee .appointed by the court, and not te-the administrator with the will annexed.
    Submission upon an agreed state of facts.
    This case was submitted upon an agreed statement of facts. 1 Bev. St. 728,. § 55, provides that “express trusts may be created * * * (2) to sell,, mortgage, or lease lands for the benefit of legatees; * * * (3) to receive-the rents and profits of lands, and apply them to the use of any person, during the life of such person.” Id. 732, § 77, provides that “a power is general when it authorizes the alienation in fee, by means of a conveyance, will, orcharge of the lands embraced in the power, to any alienee whatever.” Id. 730, § 68, provides that, “upon the death of the survingtrustee of an express-trust, the trust-estate shall not descend to his heirs, nor pass to his personal representatives, but the trust, if then unexecuted, shall vest in the court of chancery, with all the powers and duties of the original trustee, and shall be-executed by some person appointed for that purpose, under the- direction of the court.”
    Argued before Van Brunt, P. J., and. Bartlett and Macomber, JJ.
    
      John M. Bowers, for plaintiff. Chas. L. Halberstadt, for defendant..
   Magomber, J.

Upon the facts submitted, the sole question is whether or not the plaintiff- tendered to the defendant a good title to the premises .which. were sold to her at public auction. This is to be determined by the provisions of the will of Nicholas G. Kortright, who died before the 1st day of April, 1874, in possession and owner in fee-simple of these with other premises. By the third item of his will, he directed that all of his property, both real and personal, after the payment of the debts, should be equally divided between his wife and children, and directed the executors to divide the same into as many equal shares as might be necessary to give to his wife and children each twm shares thereof. By the fifth clause of the will the executors were directed to convey to the wife, and each of the children, one of such equal shares, which should be held by the parties, respectively, absolutely at their own disposal, free from all control whatever. By the sixth clause the executors were directed to retain the residue of such equal shares in trust for the benefit of the wife and children, and pay to the wife and each of the children, during their natural lives, respectively, the interest or income of one of such equal shares, keeping separately the accounts of each share so retained by them. The eleventh item of the will is as follows: “ (1) I give to my executors full pownr and authority in regard to the investments of my said estate; and for this purpose they are authorized to sell and convey any or all of my real and personal estate, and, after the payment of my debts as hereinbefore provided, to invest the proceeds in other real estate, or in personal securities, as they, in their discretion, may deem most for the interests of the parties interested in my estate. ”

We are not apprised of the objections which the defendant makes to the deed tendered her by the plaintiff, except as the same is contained in the submission papers, which are—First, that the property to be conveyed to her comes under the sixth clause of the will of Nicholas G. Kortright, and the conveyance offered by the plaintiff only conveys a life-estate; and, second, that, the executors of the will never having qualified as such, the ninth clause m said will is now inoperative, and any trustee or trustees appointed to carry out the terms of said will cannot by deed give her a title other than a life-estate. The objection seems to be, in substance, that inasmuch as, by the ninth clause of the will, the portion so set apart for the uses of the wife during her life-time went, after her death, to her children, that the trustee, under the will, could not sell the same, or make any other disposition of the property than to hold it as trustee for the use of the beneficiary. But this is not a tenable position. There are no restrictions made to the power of the executors to sell under the eleventh clause of the will. The trust imposed by the preceding sections would follow the proceeds of the sale of the real estate, or of any of the personal property which they saw fit to dispose of in pursuance of this authority. The trustee, under the will, had clearly a power in trust, which he could exercise at any time he saw fit, being bound, if the real estate should be converted into personal property, to invest the proceeds either in other real estate or in personal securities. The language of the ninth section is that, “after the death of my said wife, that portion of her share remaining in the hands of my executors shall be divided, ” etc. This seems to have been written in view of the intended provisions for the sale of the property mentioned in the subsequent parts of the will.

The only remaining question is whether or not the plaintiff possesses the powers that were given to the original executors. The original executors were Edward Minturn and George W. Blunt, who are described, also, as trustees of the real estate. They renounced, and refused to qualify either as trustees or executors. On June 8,1874, the surrogate of the county of New York appointed Sarah J. Kortright, the wife of the testator, (who has since married, and bears the name of Sarah J. Taylot,) and Benjamin Collins as administrators with the will annexed of the last will and testament of Nicholas G. Kortright. Benjamin Collins, prior to the auction sale, died, leaving Sarah J. Taylor the sole surviving administratrix with the will annexed of the testator. She, in the month of February, 1876, instituted a partition suit in the supreme court in this state, seeking a division of the real estate whereof Nicholas G. Kortright died seized, and seeking, also, the appointment of trustees in the place of Minturn and Blunt, who were the trustees in the will, and praying that the trust shares might be set off to said trustees in accordance with the provisions of the will. That action resulted in a judgment on the 2d day of April, 1876, by which it was determined that Sarah J. Kortright was adjudged to be entitled in fee to one-sixth part of the premises sought to be partitioned; Governeur Kortright, to another sixth in fee; Lawrence M. Kortright, to another sixth in fee. It was further adjudged that the trustees under the will were entitled to have and to hold, as such trustees, another sixth part thereof for the life of said Sarah J. Kortright, another one-sixth part thereof for the life of said Governeur Kortright, and another one-sixth part thereof for the life of the said Lawrence M. Kortright. It was further adjudged that the trust-shares were directed to be held by the trustees under the trust created and declared by the will of Nicholas G. Kortright. The share to be held for Mrs. Kortright, now Taylor, was set off to the trustees by the commissioners. Benjamin Collins was appointed a trustee by the supreme court on the 15th day of March, 1887, and duly qualified, and was declared by the court to be clothed with the powers of the original trustees named in the will, and Mr. Collins was afterwards permitted to resign his trust, and Governeur Kortright, the plaintiff in this action, was appointed in his stead, with like powers and authority; and he received from Benjamin Collins a conveyance of all the right, title, and interest that the trustee, as such, had in the one-sixth part of the lands mentioned in the will of the testator, and he now holds the title thereto subject to the powers and trusts declared by said will. It appears, therefore, that the present trustee possesses all of the powers to sell any of the real estate of the testator which was possessed by the original trustees, unless, from the language of the will, a personal confidence was placed in the persons there named as trustees, which was not intended by the testator to follow any successor that might be appointed, so as to enable him to sell the property. But no such conclusion can be drawn from the terms of the will. The language of section 11 is general in its nature, and the exercise of the right of sale is not restricted to the event only that the particular persons named thereafter as trustees should deem it best for the estate that the property be sold. The power of sale was an operative and general power, which though, like all powers in trust, it was discretionary, could, on the death, removal, or resignation of the trustees, be executed by a trustee appointed by the court to carry out the trusts created by the will. 1 Rev. St. 728, § 55; Id. 732, § 77 et seq.; Id. 730, § 68 et seq. That the power, in such cases, passes to the new trustees appointed by the court, rather than to the administrator with the will annexed, appears- in the cases of Cooke v. Platt, 98 N. Y 39; Mott v. Ackerman, 92 N. Y. 540.

The judgment should be in favor of the plaintiff for a specific performance of the contract, in accordance with the terms of the submission.

Bartlett, J., concurs.

Van Brent, P. J,

I concur in the conclusion arrived at by Mr. Justice Macomber, but I do not see that any question can be raised as to the power of the trustee to convey under the broad admissions contained in the agreed case. It is agreed in the case submitted that, in a certain action brought in the supreme court, a final judgment was duly entered, whereby it was adjudged that one Benjamin Collins, as trustee, was vested with full power and authority to execute the powers and trusts created by the will in question, and that the said supreme court, by its order duly made and entered on due ■ and sufficient petition, did duly order and adjudge that said Benjamin Collins be permitted, and he was thereby permitted, to surrender his trust, and that, by another order duly made and entered, the said court appointed the plaintiff trustee, in the place of said Collins, to hold the share of said estate in question, with all the powers and authority given to the trustees by the provisions of the original will. It is also admitted that all these judgments and orders of the supreme court were made on due and full notice to all the parties interested, and that in each case the court had full and complete jurisdiction in the premises. These facts being admitted, there is no question as to the powers of the trustee open for discussion now. It is admitted by this record that a court having jurisdiction of the subject-matter and all the parties has adjudged that the substituted trustee has the power which is sought to be questioned in this case. That adjudication, under these circumstances, disposes of the question, and the decrees and orders mentioned cannot be reviewed or reversed in this proceeding. The plaintiff is entitled to judgment, therefore, and it is not necessary to discuss at all the question proposed to be submitted.  