
    Thomas Harvey, App’lt, v. Giles S. Brisbin et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 9, 1894.)
    
    1. Deed—Construction.
    A conveyance to fatlier by children, who were entitled under a will to .the proceeds of the sale of certain land directed to be sold, of their interest and income in the trust fund, was held to convey no interest in the land.
    2. Same—Curtesy.
    Curtesy in land inherited by a wife, subject to a power of sale, is defeated by the execution of the power.
    Appeal from a judgment of the general term of the third department of the supreme court, affirming a judgment for defendants.
    
      B. F. Bullard, for app’lt; L. G. Pike and G. A. Waldron, for resp’ts.
    
      
       Affirming, 20 St. Rep. 702.
    
   Finch, J.

It was suggested in the appellant’s brief, though scarcely argued at the bar, that Giles was tenant by the curtesy of his wife’s land. But, on one theory of the will, she was not seized at all; and, on the other, she took only the nominal fee, subject with all its incidents to be defeated by the power of sale which has been executed with that effect; and besides, as the general term suggests, the purchaser under that sale is not a party here, and the right of the tenant by the curtesy is a legal right to be enforced against the claimant in possession. 'What I have said is equally true if the trust as to Matilda’s half ended at her death, or the trust power as to that moiety became incapable of execution after that date, as the general term opinion seems to indicate. That is one of the possible constructions; but in' that event the legal estate in a moiety of the land devolved upon the children. They never conveyed that to Giles, nor any part of it. They transferred only an interest in a supposed trust fund, which never was constituted, and never came into existence. I have not sought to construe a will not put before us, and do not determine what theory of it is correct; but, assuming all possible and suggested modes of interpretation, it is enough that none of them give the plaintiff a right which upon his complaint it is possible to enforce. The judgment should be affirmed, with costs.

All concur. Judgment affirmed.  