
    Fannie F. Archer, Respondent, v. Margaret Archer, Individually and as Administratrix with the Will Annexed, etc., of Allison M. Archer, Deceased, and Others, Appellants, Impleaded with George Archer, Individually and as Sole Surviving Executor and Trustee of the Last Will and Testament of Michael A. Archer, Deceased, and Others, Defendants.
    Second Department,
    November 10, 1911.
    Will — when remainders alienable — right to mortgage — equitable conversion — lands acquired by executors — purchase on foreclosure.
    Where a testator leaves his property real and personal to his executors in trust to receive the rents and profits during the life of his wife and apply ■ the' same to certain úses and.at the death of the wife to sell the property and divide the proceeds equally among testator’s three sons or, if they should elect to hold the same together, then to convey the property to them, each of the sons takes an alienable estate in the l-eal property which forms part of the trust fund and may create a valid lien thereon by way of mortgage.
    This is so although the will gives the executors a power of sale.
    The executors during the life of testator’s widow took only such estate" in the land as was necessary to feed the trust. As to the remainder, the title passed either to the devisees or, if undisposed of, to the testator’s heirs subject tojthe execution of the power of sale..
    Whether each son took a vested estate in the remainder under the will subject to the execution of the power of sale or whether each took title thereto as heir at law, subject as aforesaid, each had an estate in the land which was alienable. .
    Conceding that there was an equitable conversion of the realty by the will, still the alienation for a valuable consideration of the subject of such conversion by one having an interest therein, made before the actual sale thereof under the power, is in any event sufficient to create an equitable mortgage which would follow the proceeds after the conversion had actually become .effective by sale.
    But the sons do not take an alienable estate in lands acquired by the executors after the testator’s death where it is not shown how or for what purpose the lands were acquired.
    Tf the executors had been obliged to buy in such land to protect the lien of a mortgage held thereon by the testator, the property would still be personalty; the title would vest in the persons named as executors and .trustees in their individual capacity until the court disposed of the same and on an 'accounting they would have t-o account for the proceeds of such sale as though such proceeds had been realized directly on a foreclosure of the mortgage.
    
      Appeal by the defendants, Margaret Archer, individually and as administratrix, etc., and others, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eockland on the 1st day of November, 1910, upon the decision of the court rendered after a trial at the Eockland Special Term.
    
      Harvey De Baun [A. H. F. Seeger with him on the brief], for the appellants.
    
      Henry Bacon [Frederick W. Penny with him on the brief], for the respondent.
   Burr, J.:

On May 5, 1881, Michael A. Archer executed his last will and testament which, among others, contained the following provisions: “I give, devise and bequeath all my property, real and personal, to my executors hereinafter named in trust to receive the rents,' issues and profits thereof for and during the lifetime of my wife, Clarissa A. Archer, and apply the same to the use of the following persons, as follows: Pay the one-third thereof to my said wife during her lifetime and the other two-thirds thereof to my three sons, Allison M. Archer, Charles S. Archer and George Archer, in equal proportions during the same time. * * * At the death. of my said wife, I order and direct my said executors to sell and dispose of my property as soon as they deem it wise and expedient so to do) and divide the proceeds thereof equally between my said three sons, unless they elect then to hold the same; but if they elect and desire to hold the same together, then the same shall be conveyed to them by my said executors instead of being sold. * * * I empowei my executors to sell and convey my property, real and personal.” Subsequently he died, leaving surviving him his widow Clarissa and the said .three sons as his only heirs at law. On the 12th day of' October, 1881, said will was. proved in the Surrogate’s Court of Eockland county. On that date letters testamentary were issued to Charles D. Archer and Allison M. Archer, and on the 25th of October, 1882, letters testamentary were also issued to George Archer. George S. Sherwood, nominated as the fourth executor, never qualified. Charles D. Archer, one of said executors, died October 17, 1909. The letters issued to Allison M. Archer were subsequently revoked, and in 1893. he died. At the time when this action was, commenced George Archer was the sole surviving and acting executor under said will. On March 5, 1887, Allison M. Archer executed and delivered to George S. Sherwood his bond conditioned for the payment of $4,000, and. as collateral security therefor executed and delivered a mortgage by which he granted, bargained and sold to the said Sherwood “All and singular the equal undivided one-third part of the lands, tenements and hereditaments of which Michael A. Archer, late of Haverstraw, in said County, deceased, died seized, referred to, and devised in and by his last will and tes-. tarnent dated May 5th, 1881, and proved in the Surrogate’s Court of Eockland county on October 12, 1881, and on the last named day duly recorded in the office of the Surrogate of said County in Liber O of Wills at page 285, etc.; also that which has since been acquired by the executqrs and trustees of said will and also that which the said Allison M. Archer may be possessed of or' entitled to from whatever source acquired.” By various mesne assignments the said bond, and mortgage came into the .possession of the plaintiff, .and this action is brought for the foreclosure thereof. At the time of his death Michael A. Archer was seized and possessed of ten separate. parcels of real property situate in the village or town of Haverstraw, which are specifically described in the complaint. As to: six other parcels described therein and likewise situ-' ated in said village or town, the court at Special Term found that they had “been acquired and purchased by the executors and trustees under the Will of Michael A. Archer, .deceased, and conveyed to George Archer, the defendant herein, for the uses and purposes mentioned in the 'said will of said Michael A. Archer, deceased,” The question presented on this appeal by the widow and devisees of Allison M. Archer is whether the said AHison had any estate in the land described in the complaint of an alienable character, so that by the mortgage above referred to he could create a valid lien thereon. As to the property of which Michael A. Archer died seized, we think that it is entirely clear that he could. The executors during the lifetime of his widow took only such-estate' in the land as was necessary to feed the trust. As to the remainder, the title either passed to his devisees, or, if undisposed of, passed to his heirs at law subject to the execution of the power. (Crooke v. County of Kings, 97 N. Y. 421; Losey v. Stanley, 147 id. 560; Doscher v. Wyckoff, 132 App. Div. 139.) Whether Allison M. Archer took as devisee under the will a vested estate in the remainder subject to the execution of the power of sale, or whether he took title thereto as heir at law subject as aforesaid, it is not necessary for us to determine. . In either event he had an estate in the land which was alienable. Conceding that there was an equitable conversion by the. terms of the will, so that for purposes of administration and distribution the land is deemed to be personalty and not realty, still the alienation for a valuable consideration of that which is the subject of such conversion in which the alienor had an interest, and before the actual sale thereof under the power, would in any event, we think, be sufficient to create an equitable mortgage which would follow the proceeds after such conversion had actually become effective by, sale. As to the . property which was acquired and purchased by the executors and trustees under the will of Michael A. Archer, deceased, and the title to which is now in George Archer, we think that a different rule applies. There is nothing in the will which in express terms authorizes said executors and trustees to acquire and purchase real property for the benefit of the estate. There is no evidence showing how they acquired the same or for what particular purpose.-' If it was land upon which in his lifetime the testator has a lien by way of mortgage, and which upon foreclosure the executors were obliged to buy in to protect the hen, the property would still be personal property, the title would vest in-the persons named as executors and trustees in their individual capacity until the court disposes of. the same, and in an accounting before the surrogate they would be compelled to account for the proceeds of such sale, as though such proceeds had been realized directly upon -the foreclosure of the mortgage. The burden of proof was upon plaintiff, seeking to enforce a lien upon land the existence and validity of which is denied, to establish both. So far as these parcels of land are poncemed it does not appear that Allison M. Archer, or any person through whom he claims, ever had any estate or .interest therein. We think, therefore, that the judgment should be modified by excepting from the lien of the mortgage and the direction for sale those parcels- of land described in the complaint as parcels 11 to 16 inclusive, being-those parcels acquired by the executors and trustees of Michael A. Archer subsequent to his death, and as thus modified the judgment should be affirmed, without costs.

Jenks, P. J., Hirschberg, Carr and Woodward, JJ., concurred.

Judgment modified in accordance with, opinion and, as modified affirmed, without costs.  