
    Charles M. Weeks, as Surviving Trustee under the Last Will and Testament of George W. Weeks, Deceased, Plaintiff, v. Julia Frankel, Defendant.
    Second Department,
    October 16, 1908.
    Will — testamentary trust construed — when surviving trustee cannot exercise power of sale.
    A will devising land to two persons and their successors in trust to pay the income to one of them for life or until the testator’s eldest grandchild arrives at his majority with remainders over and giving power to the-trustees to sell “ in their full discretion” and invest and reinvest the proceeds “as they shall jointly agree,” shows an.intention that the trustees shall unite in the exercise of the power of sale, and where one is dead the other,' acting alone, cannot exercise the power, although he' be the sole beneficiary.
    Submission of a controversy upon an agreed .statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Burlock E. Rabell, for the plaintiff.
    
      William Rosin, for the defendant..
   Rich, J.:

The question presented is whether a sole trustee, who is for the time being also the sole beneficiary under the will of his deceased father, can,.during the time he is such sole trustee and beneficiary, convey and give good title to a parcel of land forming part of the trust estate.

The plaintiff’s father died on May 24, 1904, testate. His will, so far as its provisions are material to the question under consideration, devises all of his real estate to the plaintiff and one Michael J.

' Collins, and their successors, in trust, “ to collect the rents, issues, profits and income thereof and after expending therefrom, such amounts as may be deemed necessary by them in keeping the said premises in good order and repair and properly insured against loss and damage by fire and after the payment of all taxes, Croton water rents, charges and assessments that may be levied thereon, to pay the remainder of such rents as and when collected to my son, Charles M. Weeks ” — the plaintiff — until my oldest grandchild me surviving shall arrive at majority or until my said son shall die, whichever event shall first occur, and thereafter and until my oldest grandchild me surviving shall arrive at the age of twenty-five years, or shall die, whichever event shall first occur, to pay the remainder of such rents as and when collected to my grandchildren in equal shares, whether born before my death or at any time prior to the termination of the .trust, the issue of any grandchild, who may have died prior to the termination of this trust to take the share to which his or her parent would have been entitled if living. Upon the termination of this trust, I give, devise aud bequeath the said real estate to my grandchildren, share and share alike,” etc. By the Yth subdivision the trustees and their successors were authorized and empowered “ in their full discretion to sell any or all of my real or personal property at public or private sale and upon such terms as they shall deem most advantageous and desirable, and to make, execute and deliver good and sufficient deeds and other instruments to cany such sale or sales into effect, and to invest and reinvest the proceeds thereof in such securities as they shall jointly agree upon, and I direct that the proceeds thereof shall take the place of the property sold.” This will was duly admitted to probate, and letters testamentary were issued to Collins and the plaintiff, both of whom qualified as executors and entered upon the discharge of their duties as executors and trustees. Collins died January 20, 1905, and on March 1, 1906, the plaintiff as surviving executor duly accounted and was discharged. Since that time he has acted as the surviving trustee under said will. The testator’s oldest grandchild will become twenty-one years of age on June 23, 1913 — at which time the plaintiff, if living, will cease to be a beneficiary— and of the age .of twenty-five years on June 23,..1917 when the trust will terminate and end. .On February 13, 1908, the plaintiff and one Louis Frankel entered into a contract in writing by which the former undertook and agreed to convey to the latter; or his assigns, real property which formed part of the trust. estate, and Frankel paid $1,000 oil the purchase price. Frankel subsequently assigned said contract 'and all his interest therein to the defendant. The defendant refused to accept a deed tendered "by plaintiff upon the ground that he could not convey a good, marketable and perfect title to said premises under the power of sale, for the reason that the plaintiff was the sole beneficiary of the income of the premises until his oldest child reached twenty-one years of age, and was at the time of making the contract and ever since has been the surviving trustee of the trusts created by the said will, and cannot, as such, exercise the discretionary power of sale therein contained, but that he should apply to the court for permission to make the proposed conveyance.

The rule of law that a trust cannot be executed by a sole surviving trustee who is also a sole beneficiary, without either the appointment of a trustee to fill the vacancy caused by the death of the competent trustee or the supervision of the execution of the trust by the Supreme Court, is conceded by the plaintiff, but he nevertheless contends that a surviving trustee can convey a good title. The cases relied upon by the plaintiff are not applicable to the facts disclosed by the record before" us. In Rankine v. Metzger (69 App.. Div. 264) and Sweet v.Schliemann (95 id. 266) the acting trustee was not the sole beneficiary. Woodward v. James (115 N. Y. 346) was determined upon the conclusion that the widow trustee was not a trustee as to her half of the income of the trust estate, but took the same by a direct legal right. In Robertson v. De Brulatour (111 App. Div. 882, 901) the trust estate consisted of personal property, and the question arose upon the right of the trustee to commissions. Our attention is directed to the case of Doscher v. Wyckoff, decided at Special Term and not yet reported. In that case it appeared that while the trastee was beneficiary to the extent of the rents and income of tiie realty, there was in fact no income arising therefrom, and the court held that she was not trustee and beneficiary of the same identical interest; while in the case at bar, aside from the preservation of the property, the trust was confined to the collection and payment to plaintiff of the net income of which he was the sole beneficiary until his death or such time as his oldest son reached the age of twenty-one years. At the time lie attempted to transfer a parcel of the trust estate he was the sole beneficiary as well as sole trustee Of the same identical interest. The court sought to distinguish the Haendle Case (84 App. Div. 274) by the statement that in the latter there was no proof that the testator had any children, and if not, the widow was the sole beneficiary as well as trustee; but this was considered only in determining the validity of the trust, and not as to the legal status of the widow, the court saying that the trust was. to continue only during the life- of the wife and upon her death the remainder vested in the children, if the testator -had any, and if not, in his heirs at law; from which it followed that a valid trust for the life of the wife was created. A rational presumption flows from the fact that a testator makes his children his residuary legatees that he has children in the absence of evidence -to the contrary. In addition there was a life estate between Mrs. Wyckoff and the enjoyment of any income. The testator in the case at bar does not confer any part or authority upon the survivor of the two trustees named. He devises the property to “ my trustees hereinafter named, or to their successors.” The expenditures authorized, to be made are such as may be deemed necessary by “ them.” The authority to sell is given to “ my executors and trustees and their successors in their full discretion ” upon such terms as “ they ” deem most advantageous; the avails of' the property sold is to take the place of the property itself, and is directed to be invested in such securities “ as they shall jointly agree upon.” It was his intention, I think, to provide that the trust should not be exercised by one trustee, and that two trustees must unite in the execution of the power of sale and investment of the proceeds.

. The defendant is entitled to judgment upon the merits, and for the sum of $1,000 — the amount paid upon the execution of the contract — with interest thereon from the date of such payment and the costs of the action.

Let judgment be entered accordingly.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

. Judgment for defendant, with costs, on submission of controversy in accordance with opinion. 
      
      
        Haendle v. Stewart.
      
     