
    Charlotte M. Gallie, trustee of Charles R. Gallie vs. Frederick P. Eagle and others.
    A trustee of land, under a valid ti'üst to técéivfe the rents and profits of said land and apply them to the use and support of an infant, until such infant arrives at the age of 21 years, with an absolute power to sell the land and invest the proceeds thereof for the benefit of such infant, may institute a suit in equity to partition the lands held by her in common with other persons of adult age.
    HIS is an appeal, by the plaintiff, Horn an order of the Special Term sustaining a demurrer to the complaint. The plaintiff, as trustee, is seised of an undivided one-fourth part of certain premises, as tenant in common with the defendants. The trust is to receive the rents and profits and apply the same to the support, education and maintenance of. Charles R. Gallie until he shall attain the age of 21 years. The trustee has full power, in her discretion, to sell, grant, assign .and convey said premises, and invest and hold the proceeds on the same trust.
    The plaintiff brings this action for a partition of said lands. The defendants demurred to the complaint, first, on the ground that the plaintiff had not legal capacity to sue; and second, that the complaint does not state facts sufficient to constitute a cause of action. The court, at Special Term, sustained the demurrer, and ordered judgment for the defendants, with leave to the plaintiff to amend her complaint.
    
      C. T. Richardson, for the appellant.
    I. The plaintiff is a trustee of Charles Roderick Callie, her infant son, and the trust is for the “support, education and maintenance of said infant until he shall attain the age of 21 years.” The trustee has full power, at her option, to “sell, grant, assign and convey” the trust estate, and to invest and hold the proceeds on the same trust. The lands described in the complaint are held by the plaintiff and the defendants, Eagle, Cornelia Carmichael and Catharine Lyon, as tenants in common, each being seised of an undivided one-fourth. The trustee brings this action asking the partition of the lands so held.
    II. The trust is an express trust authorized by the statute. (1 R. S. art. 2, chap. 1, part 2, tit. 2, § 55, subd. 3. Savage v. Burnham, 17 N. Y. 561.)
    III. Every express trust, valid in its execution, vests the whole estate in the trustees in law and equity. The persons for whose benefit the trust is created shall take no estate or interest in the lands. (1 R. S. art. 2, chap. 1, part 2, tit. 2, § 60.)
    IV. The whole estate, legal and equitable, is then in this plaintiff, and the statute authorizes the partition, (2 R. S. 317, § 1.) 1. The defendants rely on the cases holding that a power of sale is not well executed by a partition. The distinction is perfectly plain. In the case of a power there is no title or seisin in the donee of the power. In this case the whole estate is in the trustee. In Van Arsdale v. Drake, (2 Barb. 599,) this distinction was expressly recognized. That was a case where the assignees for the benefit of creditors of an insolvent, brought partition; that is, the trust was under the first subdivision of section 55 of the statute. The objection was raised that the trust of the assignees would not be well executed by partition ; and also that the insolvent’ s creditors should be made parties. The court held (pages 600, 602) that partition could be made and that the creditors need not be made parties. 2. The creditors in that case stood in precisely the position that the infant cestui que trust does in this. They had the right to enforce the trust in equity. (1 R. S. 729, § 60.) Non con-stat but these creditors might have been infants. 3. In Braker v. Devereaux, (8 Paige, 513,) it was held that where a portion of the premises sought to be partitioned had been conveyed to a trustee on a trust not authorized by the statute, the cestui que trust was a necessary party defendant, because the trust was unauthorized. But the court say if the trust had been valid, it would only have been necessary to bring the trustee before the court, because the absolute title would be in him.
    "V. The defendants claim that this partition is not authorized, because the statute (2 R. S. 317, § 1) prescribes that the parties applying for a partition must be of “full age.” The trustee is of full age, and the infant has no estate. If it is suggested that the infant should have applied to the Supreme Court for the sale of his interest under the statute, (2 R. S. 194,) it is answered that in Baker v. Lorillard, (4 Comst. 257,) the Court of Appeals held that to give the court jurisdiction to sell, under that statute, the infant must be seised of the property.
    vi. The interests of the infant in this case will be, at every stage, under the supervision of the Supreme Court, which is the guardian of all infants and the ultimate arbiter of their rights. It is matter of every day practice to decree partition against infants and trustees. It is not perceived why a strained technicality should prevent a partition, where an infant cestui que trust is the moving party, especially as there is no other remedy.
    
      A. Perry, for the respondents.
    I. The plaintiff is not entitled to maintain this action' She holds the estate in trust to receive the rents and profits and apply them to the use of Charles Roderick Gallie until he shall attain the age of 21 years. (1 R. S. 728, § 55, sudd. 3.) She at the same time holds a power •in trust, i. e., the power to sell and convey. The same person may hold the estate in trust for one purpose and at the same time be a grantee of a power in trust for another purpose. (Belmont v. O’Brien, 2 Kern. 394, 404.) As trustee of the estate, the plaintiff has no power to sell. A sale would be in contravention of the trust, and absolutely void. (1 R. S. 730, § 65.) 1. As trustee merely, it is clear that the plaintiff cannot maintain proceedings for partition. In case of sale she could convey no title to the purchaser. Otherwise a trustee, by bringing an action for partition, might evade the provision of the statute prohibiting a sale of the estate by the trustee. (See Cheesman. Thorne, 1 Edw. 629.) 2. As grantee of the power in trust, the plaintiff is not entitled to maintain this action. A power of sale is not well executed by a partition. (Willis on Trustees, n. h. 143. McQueen v. Farquhar, 11 Ves. 467. Brassy v. Chalmers, 16 Beav. 223. Perry on Trustees, § 769 and cases there cited.) The case of Van Arsdale v. Drake, (2 Bard 599,) is not in conflict with the position above taken. There the purpose of the trust was to sell land for the benefit of creditors. That is one of the purposes for which a trust may be created. (1 R. S. 728, § 55, sudd. 1.) A sale in that case, of course, could not be in contravention of the trust. It would not be made in execution of a power, but in execution of the trust itself.
   By the Court, E. Darwin Smith, J.

The only question presented upon this appeal is, whether a trustee of land under a valid trust to receive the rents and profits of said land and apply them to the use and support of an infant, until such infant arrives at the age of 21 years, with an absolute power to sell such land and invest the proceeds thereof for the benefit of such infant, can institute a suit in equity to partition said lands held in common with other persons of adult age.

By the common law, as well as under the statutes of this State, partition between tenants in common of real property is matter of right, when either of said parties will not consent to hold and use such property in common. (Smith v. Smith, 10 Paige, 473. Van Arsdale v. Drake, 2 Barb). 600. 2 R. S. 317.) The provision of the Revised Statutes, section 1, requires that the party applying for partition be of full age. This is the only restriction upon the absolute right of a tenant in common, or joint tenant, to institute the suit or proceeding by petition. The statute of 1852, entitled “An act in relation to the partition of land,” takes away this restriction, and authorizes any infant possessed of real estate as tenant in common, or joint tenant, to institute such proceedings in the Supreme Court by leave of that court. But, independent of this provision, I can see no reason why the plaintiff cannot maintain this action. She is of full age, and seised of the premises, and is vested with the whole estate, subject only to the execution of the trust. (1 R. S. part 2, ch. 1, § 60.)

The person for whose benefit an express trust is created under this statute, and as allowed in section 55, ‘ ‘ takes no estate or interest in the land, ’ ’ but may simply enforce the performance of the trust in equity. (Id. § 60.) Section 1 of the statute providing for the partition of land, (2 R. S. 317, supra,) provides that when several persons shall hold and be in possession of lands, &c., as joint tenants or tenants in common, any one of them may have partition, with the qualification above stated. This plaintiff holds and is in possession of the lands of which partition is sought, in common with the defendants. She is within the precise terms of the statute. Certainly either of the defendants could have partition here, and I can conceive no reason why the plaintiff may not. The plaintiff might sell these lands, and invest the proceeds under the power conferred upon her in the deed of trust. But the partition of lands held in common by and under the authority of this court is not the exercise of a power. It is merely the division of the common lands for the mutual benefit of the parties interested therein, that each of the tenants in common may separately enjoy, use and improve his own part and parcel thereof. It may be greatly for the interest and benefit of the trust estate, in this case, that the plaintiff have such right of separate use and enjoyment of her one-fourth of this property. At least the plaintiff is clearly entitled to exercise her own judgment and discretion upon the question.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin Talcott and M. D Smith, Justices.}

I think the judgment should be reversed, and the defendants allowed to answer upon the usual terms.  