[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 141
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 142 It is unnecessary to determine whether the executors under the will of Jackson took a legal estate in the rest and residue devised, or were merely donees of a power of sale given them to aid in the ultimate distribution. In the one event they took the fee as trustees, and no estate in the land went to the heirs at law by descent or devise; and in the other the fee passed to the devisees under the provisions of the will, but in either case the executors were at liberty to convey and could transfer a valid and perfect title to a purchaser. There *Page 144 were three of these executors. One of them died, leaving the survivors with an unexecuted trust. But these after paying debts and legacies and settling the estate in all respects, except as to the authorized sale and distribution, resigned, and their resignation was accepted by the Supreme Court, which had authority to relieve them from their position. (1 R.S., part 2, chap. 1, title 2, § 69.) By death and resignation no acting trustee remained, and the court was at liberty to appoint new trustees. (§ 71.) Farrar and Hawley were accordingly appointed by an order made at Special Term, and they thus became vested with the power and authority originally given to the executors, unless the first objection made on behalf of the appellant is sound. That is, that the executors under the will had only a naked power of sale which amounted to a personal confidence and trust, and which could not be vested in any new or substituted trustees. But no discretion was given to the executors, nor any choice among beneficiaries. We have recently held that such a trust power as here existed, if no trust estate was created, is a general power in trust and imperative, and subject to the same provisions as to the substitution of new trustees as are applicable to express trusts. (Delaney v. McCormick, MSS., Feb. 28, 1882.*) Farrar and Hawley, therefore, were at the date of their appointment lawfully substituted as trustees and had power to convey. (Crittenden v. Fairchild, 41 N.Y. 289; Leggett v.Hunter, 19 id. 459.) They now offer to deed to the purchaser who is willing to buy, but doubts the safety of the title proposed to be given.
It is very certain that if they cannot convey a good title, it is because they have lost the power to do so by something which has occurred since their appointment, for when that was made they were legally trustees under the will, and had full power to sell the land and convert it into money for the purpose of investment and distribution. The conclusion of the General Term to the contrary goes upon the ground that because the executors had paid all debts and legacies prior to a disposition of the residue, and settled their accounts before the *Page 145 surrogate, the trust was at an end and nothing remained to be done for which a trust estate or a power in trust was essential. Such view of the will overlooks its principal purpose, and the most important duty imposed upon the trustees. It remained for them to sell the real estate, to convert it into money, to invest it as directed, to apply the interest to the support and education of each of the three children until twenty-one, at that age to pay over the surplus of interest accrued, and thereafter to pay the interest annually so long as any two of the children survived, and, when only one was left, to make the final distribution. This disposition of his property was the paramount and principal purpose of the will, and so far from being ended has only just begun. The executors and the court both realized the fact when permission to resign was asked. The former put their request upon the express ground that at their age they could not expect to live to carry out their trust; and although they did say in their petition that their duties as executors had been fully performed, and the estate had been duly administered, they plainly recognized and distinctly said that their duties as trustees to carry out and perform the trusts imposed by the will upon the residuary estate remained. We can discern no possible ground for saying that these trusts ended, because debts and legacies had been paid, and the earlier duties of the executors had been performed.
The trust, therefore, remained. Death and resignation took away the trustees. The court properly appointed successors, and these in the moment of their appointment were fully authorized to sell and convey. What they did was this: they united in a conveyance to Ernest M. Jackson, who was one of the devisees interested in the residue. He gave a mortgage upon the property, and then reconveyed to Farrar as trustee, his associate trustee, Hawley, having in the mean time resigned. Two things are said about this transaction. It is claimed that the sale to Jackson was only colorable, and not a valid execution of the power. That may or may not be true. There are no facts to justify any such determination. They reach no further than to suggest possibilities about which it is not our *Page 146 duty to speculate. But since Jackson proposes to join in selling to the purchaser, the inquiry is of no consequence. The deed of the trustees was either absolutely void, or voidable, or good. If it was void the power of sale has not been executed, the right to convey for the purposes of the will remains in the trustees, and they can make a good title to the proposed purchaser. If it was voidable, the grantee took subject to avoidance, which would still leave the power of sale unexecuted, and that duty remaining to be performed. If it was good the title passed to Ernest M. Jackson, and if his reconveyance to the trustee subject to the mortgage was unauthorized, the title remains in him. So that, in any event, a conveyance by the trustees and their grantee will cover the entire interest, subject to the mortgage, and provide against all the suggested difficulties. It is further said that Hawley's resignation was ineffectual, because the order accepting it does not, on its face, show that it was an order of the court. But if that be true he remains trustee, and the trouble is obviated by an offer to have him join in the conveyance. In this view of the case it is apparent that the title which the testator had at the time of his death can be vested, subject to the effect of the outstanding mortgage, in the purchaser, and he should be required to complete his purchase.
The judgment should be reversed, and defendant directed to perform his contract accordingly.
All concur, except MILLER, J., absent.
Judgment accordingly.
* 88 N.Y. 174.