
    Thomas J. Chamberlain et al., Ex’rs of Benj. Chamberlain, deceased, App’lts, v. Hascal L. Taylor et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Ejectment—When executors mat maintain—General devise op land IN TRUST TO SELL VESTS NO TITLE.
    Plaintiffs were directed to divide the residue of C.’s estate into two parts, each of said parts “to be paid to” certain corporations, and by another clause, the testator gave his whole estate, not specially devised, to his executors “in trust for the payment of the bequests and legacies herein before specified and directed to be paid; and for the purpose of executing such trust, I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute and deliver the necessary conveyances, assignments and releases of the same, and to sell such estate, or any part thereof, at such time or times, and upon such terms as to them shall seem proper.” Held, that this did not imply an intent by the testator to vest the title off the real estate in his executors, since they were not authorized to receive the rents and profits, and that they could not maintain an action of ejectment against the defendants having possession of property, which plaintiffs had sold under such power. I
    2. Same —2 R S.. chap. 1, title 2, art. 2, § 55, surd. 2 —Express. TRUST.
    
      Held, that this was not an express trust under 2 R S., chapter 1, title 2, article 2, section 55, allowing the creation of a trust “ to sell, mortgage'or lease land for the benefit of legatees, or to satisfy charges on it,” as a legal performance of the duties .enjoined could have been effected by a distribution in specie.
    
    3. Same—Power in trust.
    Although the power conferred might be exercised as a power in trust, yet in that event the title would be in the heirs at law, subject to the execution of the power.
    4. Same—Laws 1860, chap. 36—Stare decisis.
    Furthermore, it was held (43 FT. Y., 425) that the devises were invalid, to the extent of one-lialf of the residuary estate, as being in conflict with chapter 36, Laws 1860, and a necessary result of this determination, under the doctrine of stare decisis, is to foreclose all parties from the right or privilege of reopening or discussing the questions therein determined.
    5. Same.
    As the real estate embraced but a small portion of the property, and the personal estate was not more than sufficient to satisfy the valid legacies, it was the duty of the executors to satisfy the legacies from the personal estate, and nothing existed to prevent the descent of the real estate to the heirs.
    6. Same—Equitable conversion.
    Equity will never presume a conversion, unless it is demanded to accomplish the lawful purposes expressed in the will of the testator.
    7. Same—Effect of deed from executors.
    The deed of plaintiffs of this property, being void under the statute, has no affirmative effect in supporting the cause of action, and plaintiffs stand in this action as though the exercise of the power of sale under the will had never been attempted by them.
    ' F. D. Northrup and William F. Cogswell, for app’lts; John G. Hall and JD. H. Bolles, for resp’ts.
   Roger, C. J.

This is an action of ejectment uO recover possession of 156 acres of land situate in the county of Cattaraugus, brought by the plaintiffs as executors of the will of Benjamin Chamberlain. The plaintiffs claim that Benjamin Chamberlain died seized of an estate in fee-simple in such land, in February, 1868, and that, therefore, a power of sale, as well as the title thereto, became vested in them by virtue of the provisions of his will. They also claim that, having executed the power of sale by conveying the lands to one Freeman in 1880, for a valuable consideration, and such deed being void by_ reason of an adverse possession by the defendants at the time of its execution, this action is brought, under the statute, for his benefit, to recover such lands.

It is-an elementary rule in ejectment that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of his, adversary’s; and, this being so, it will be unnecessary to consider the defenses pleaded in the answer, unless we come to the conclusion that the plaintiffs derived title to the premises under the will of the testator. Upon the trial the court directed a vérdict for the defendants, holding that the plaintiffs had shown no title in the premises, and the general term, on appeal, affirmed such judgment. The question presented is determined by the provisions of the will, and such additional force as may be given to the plaintiffs’ claim by reason of the conveyance to Freeman, and the provisions of the statute authorizing an action for his benefit in the name of his grantors.

The provisions of the will are somewhat voluminous, but, so far as they bear upon the questions under discussion, are substantially comprised in its eighteenth and twenty-second subdivisions, which read as follows: “ (18) I hereby further will and direct that all my estate not otherwise hereinbefore disposed of be divided into two equal parts—one of said parts to be paid to the Centennary Fund Society of the Erie Annual Conference of the Methodist Episcopal Church, to be by said corporation invested, and kept permanently invested, and the interest and income thereof used and expended by said corporation for the benefit of Allegany College at Meadville, Pennsylvania, in such manner and for such specific purposes as said corporation shall direct; and that the other of said parts be paid by my executors to the trustees of the Chamberlain Institute, to be by said trustees permanently invested in bonds and mortgages upon productive farming lands in this state, such mortgages to be first liens, the said principal to be kept permanently invested, and the interest and income thereof to be received by said trustees, and by them used in the payment of the salaries of tutors and professors employed to teach in said institute, and in purchasing books and apparatus for the library of said institute,” etc. “(22) I hereby further nominate and appoint as executors of this my last will and testament, Thomas J. Chamberlain, Amos Dow, Charles P. Adams and Alonzo Kent. And I give, bequeath, and devise all my real and personal estate not hereinbefore specially devised and bequeathed, to my said executors, in trust for the payment of the bequests and legacies hereinbefore specified and directed to be paid; and, for the purpose of executing such trust, I hereby authorize and empower them to sell and convert all my real and personal estate into cash, and for that purpose authorize them to execute deliver the necessary conveyances, assignments and releases of the same, and to sell such estate, or any part thereof, at such time or times, and upon such terms, as to them shall seem

It is, of course, well settled that a general devise of lands in trust to executors to sell and convey them vests no title in the trustees. Manice v. Manice, 43 N. Y., 304. It will be observed that the testator has not, by any express language, attempted to vest the title of his real estate in his executors; and that is not claimed by the appellants; but they seek to imply his intent to do so from a consideration of the various provisions of the will, and mainly from that authorizing them to convert his real estate into cash. An unanswerable objection to such an implication seems to us to arise from the express provisions of the statute relating to uses and trusts, which practically forbids it, unless, in addition to the creation of a valid trust, the power to take the rents and profits is also given to the executors. It is not claimed that the devise contained in such clause is brought within the description of any of the express trusts authorized by statute, unless it may be that permitted by subdivision 2, section 55, art. 2, tit. 2, chap. 1, pt. 2, Rev. St., allowing the creation of a trust “to sell, mortgage or lease land for the benefit of legatees, or to satisfy charges on it.” We are, however, of the opinion, for several reasons hereafter stated, that such a trust was not thereby created. The will directs the executors to divide the testator’s whole residuary estate into two parts, one of which is directed to be paid to the Centennary Fund Society, and the other to the trustees of the Chamberlain Institute, and for the purpose of making such division they are authorized and empowered to sell and convert all of his real and personal estate into cash. Undoubtedly, a strong implication arises, from the use of the word “paid” in directing the satisfaction of the legacies, that it was intended by the testator that the real estate should be converted into money, and thus handed over to the legatees; but there is no imperative direction given to sell the lands; neither do the purposes of the will require such a sale; and a legal performance of the duties enjoined upon the executors could have been effected by a distribution of the property in specie to the legatees. The distribution or division of the residuary estate between the named legatees was the main object contemplated by the testator, and not its sale; and, although he might have intended a conversion of the real estate, it does not affect the transfer of the title, unless the intention to do so is manifested in the mode and language required by the statute. That expressly provides, in the case of such a trust, that no estate in the lands vests in the trustees unless they are also authorized to receive the rents and profits of the same. Id., section 56.

Although the provisions of the will are inoperative to create a valid express trust under the statute, yet the power therein conferred might still be exercised as a power in trust; but in that event it is also expressly provided that the title shall descend to the heirs at law, subject to the execution of the power. Sections 56, 58, 59, Rev. St.; Cooke v. Platt, 98 N. Y., 35; Konavalinka v. Schlegel, 104 id., —; Downing v. Marshall, 23 id., 366. It was held in Cooke v. Platt (98 N. Y., 35) that a merely discretionary power of sale in the executors for purposes of distribution, even though connected with the right to receive the rents and profits, did not vest them with title to real estate. Much less would this be so where no power to take rents and profits was given by the will, or inferable from any of the purposes therein contemplated. See also White v. Howard, 46 N. Y., 162.

The cases of Lent v. Howard (89 N. Y., 175) and Donovan v. Van De Mark (78 id., 244), cited by the appellants, are not in conflict with the views expressed, but rather tend to support them. In the first case, it was held that the will did not vest the title in the executors, but it descended to the heirs; but, under the special provisions of the will, it was decided that the right to the rents and profits of the real estate was separable from the right to the possession, and those received by the executors intermediate the death of the testator and the execution of the power of sale were intended to be given to and belonged to the executors for the purposes of the will. In Donovan v. Van De Mark it was held that the will devised the real estate to the executor in trust, with power, either directly or inferentially, to receive the rents and profits, and apply them accordingly to his judgment, and that, therefore, a valid trust was created, and a legal title vested in the trustee. In that case, the right to take the rents and profits was by the will clearly intended to be given to the executor, and in that respect differs from the case at bar.

The argument that title in the executor was to be implied from the intent expressed in sections 18 and 22 to give to them, is effectually refuted by reason of the adjudication of this court in Chamberlain v. Chamberlain (43 N. Y., 424), holding that said devises were invalid, to the extent of one-half of the residuary estate, as being in conflict with the provisions of the statute forbidding testamentary bequests to religious and other charitable societies or corporations, in certain cases, in excess of one-half of the testator’s property. Chapter 360, Laws 1860.

The case shows that the real estate of the testator embraced but a small portion of his property, and that the personal estate was much more than sufficient to satisfy all of the valid legacies. It was, therefore, the duty of the executors to satisfy such legacies from the personal estate; and resort to the real estate for such purpose could be had only when they were expressly charged upon it. An intent to satisfy these devises by a sale of the real estate cannot, therefore, be drawn from the provisions of this will. It is clear that there has been no valid devise of the land, either to the executors or to any other persons, and nothing to prevent its regular descent to the legal heirs of the testator. It is a settled principle of law that the legal rights of the heir or distributee to the property of deceased persons cannot be defeated except by a valid devise of such property in other persons. Haxtun v. Corse, 2 Barb. Ch., 521; Jackson v. Schauber, 7 Cow., 195; Post v. Hover, 33 N. Y., 598; White v. Howard, 46 id., 165; Hawley v. James, 16 Wend., 61. It was said by the chancellor in Haxtun v. Corse (2 Barb. Ch., 521), that it was not sufficient “ to deprive an heir-at-law or a distributee of what comes to him by operation of law, as property not effectually disposed of by will, that the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate; but to deprive an heir or distributee of his share of the property which the law gives him in case of intestacy, the testator must make a valid and effectual disposition thereof to some other person.” It is therefore quite plain that the executors did not take title to the lands in question under the will, unless such claim can be supported upon some other theory than the one discussed.

It is, however, urged that the authority given the executors to sell and convey the real estate for the purposes of the will worked an equitable conversion, and so changed its character as to take it out of the operation of the rules pro - vided by statute for the descent of real estate. As we have seen, under the construction given to this will, there was no necessity, in satisfying its purposes, that there should be a conversion, and equity will never presume a conversion unless it is demanded to accomplish the lawful purposes expressed in the will by the testator.

Judge Allen said in 43 N. Y.: “If the residuary bequests are valid, there was an equitable conversion of the whole estate into personalty.” But he then proceeded to show that they were valid only to the extent of one-half the value of the property; and it follows, as a corollary from such conclusion, that an equitable conversion had not taken place. This question came under consideration in White v. Howard (46 N. Y., 165), where Grrover, J., said: “To constitute conversion of real estate into personal in the absence of an actual sale, it must be made the duty of, and obligatory upon, the parties to sell in any event. Such conversion rests upon the principle that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.” It was also held in that case that, so far as the will made no valid disposition of the real estate, it vested in the heirs.

While, in the determination of the claim of heirs, devisees, and legatees arising under a will, the law will consider a conversion of real into personal property to have taken place for certain purposes in special cases, it never does so unless there has been a valid devise of the property in dispute, in some form, to a specified beneficiary, and the purposes of the will require it to be done. It was said by Judge Earl in Wilder v. Ranney (95 N. Y., 12), that “there may have been a conversion of this real estate into personalty for many purposes, but not for all purposes. It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such; and the rules of law generally applicable to real estate remained applicable to this.” In that case it was held that an equitable conversion of the real estate did not authorize its sale and conveyance by one executor without the co-operation of his co-executor.

The decision of this case might also, we think, have been rested altogether upon the former determination of this court in Chamberlain v. Chamberlain (43 N. Y., 425), which rendered the questions therein determined stare decisis. The validity of the trust attempted to be created by the provisions in question having there come under consideration, it was held that in so far as the testator attempted, by the residuary clause, to give to the institutions. therein named more than one-half of the residuary estate, his effort was ineffectual, and that such portion of his estate as was not well disposed of by will descended to the testator’s heirs at law and next of kin. Under this decision, and in accordance with the remittitur transmitted to it, judgment was, on the third of October, 1871, entered in the supreme court, in the clerk’s office of Cattaraugus county, by which it was determined “that the real estate of the said Benjamin Chamberlain which he held or owned at the time of his decease descended to his heirs at law, subject to the execution of such of the valid and effectual provisions of said last will and testament as relate to or affect the same,” and exempt, as aforesaid, from any claim or right of dower on the part of the said Lucy Chamberlain; and that in case, after the payment of the debts of the testator, and the execution of the valid and effectual provisions of said last will and testament, there shall remain any surplus from the personal estate of said testator, such surplus shall, and is hereby declared and held to belong to, and shall be distributed and divided between and among, the next of kin of said testator, as their rights shall appear, in the manner provided by law in cases of intestacy. The action in which this judgment was rendered, was brought by one Colvin J. Chamberlain, in behalf of himself and the other heirs at law and next of kin of Benjamin Chamberlain, against the plaintiffs herein, the executors of the said Benjamin Chamberlain, and the principal legatees under such will, to obtain a construction of its provisions. A necessary result of this determination, under the doctrine of stare decisis, is to foreclose all parties from the right or privilege of reopening or discussing again the questions therein determined.

It was said by Denio, C. J., in Towle v. Forney (14 N. Y., 425), that “the cases, however, are extremely rare in which the determination of the highest appellate court can be properly departed from when the same legal question arises before a court of the same government. If it shall be thought that an erroneous rule has been established by the adjudication relied on as a precedent, it is better that it should be changed by the legislature by an act which cannot retrospect than that the courts should overturn what they have themselves established, and thus disappoint all who have acted upon the rule which had been considered settled. If this is so where an abstract rule of law determined in a prior case is sought to be applied to new facts, the reason is stronger when, as in this case, a series of particular acts has been passed upon and held to produce a given legal result, and the same identical facts are again before the court between other parties. In such a case, there being no pretense of collusion, and no reason to impute carelessness or inattention to the judges, the determination should be considered final and conclusive upon all persons in interest, or who may become interested in the question, as well as upon the parties to the particular action.” Chase v. Chase, 95 N. Y., 373.

This application of this doctrine to the case in hand seems particularly appropriate, inasmuch as a large estate has been administered by the present plaintiffs in accordance with the principles declared in the former decision; and the entire known property of the testator converted and distributed among the heirs at law, next of kin, and legatees, by a judicial settlement before the surrogate, acquiesced in by all parties interested. As early as 1875 a large sum derived from the residuary estate had been equally distributed by judicial proceedings,between the residuary legatees and the next of kin, and said legatees had executed and delivered to the plaintiffs proper vouchers, acknowledging full satisfaction of their legacies.

But one question remains to be discussed, and that relates to the effect which the deed from the executors to Freeman has upon the action. It is clear that such a deed, being void under the statute, could have no affirmative effect in supporting the cause of action. While the statute in such a case authorizes the grantee in the deed to maintain an action, in the name of his grantor, to recover possession of the lands described, from the occupant thereof, it is obvious that such deed adds nothing to the original right of the grantors. Section 1501, Code of Civil Procedure. The intent of the statute was to enable the grantee to avail himself of a title which overreached the right of the adverse possessor, and barred such possessor from making the objection that the plaintiff in the action had parted with his title. Such an action can be maintained independent of the consent of the grantor, and is supposed to be conducted by the grantee alone for his own benefit; but it must necessarily be sustained, if sustainable at all, upon the validity of the title originally existing in his grantor. It is brought in his name,'and upon the theory of an original right in him to the possession of the property. But it has been seen that the plaintiff never acquired any title or right to the possession o£ the disputed premises. The title to the premises originally existing in their testator passed, at the time of his death, to his heirs; and from that time they alone had a right to the property, and the exclusive right to maintain an action for its possession. The power of sale given by the will to the executors could be made effectual only by its valid exercise; and this, it is clear, has never been effected. They stand, therefore as plaintiffs in this case, precisely as though its exercise had never been attempted, and they were asserting only the rights in the property which the will gave them. As we have befoi’e shown, they did not take the title by the will, and they have shown no other right to recover in this case.

The judgment should be affirmed.

All concur.  