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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 513 As a suit in equity to rescind an agreement for the sale of real estate by reason of a defect in the title or a want of power to sell in the vendors, the action could not be maintained. The plaintiff having a perfect defence at law and in equity in any action which might be brought to enforce the agreement, an action by him to rescind it would be unnecessary. But, as an action to recover money paid upon a consideration that has failed, this action can be sustained if the title of the defendants is not such as the plaintiff is bound to accept. The power of the defendants to make the sale and convey the property, the subject of the sale, is derived from the will of John J. Palmer, and depends upon the interpretation of that instrument. At the time of the making of the will the wife and seven children of the testator were living; the wife and two of the children died during the lifetime of the testator, the children dying unmarried and without issue; another of the children, Henry Palmer, died several years after the testator, leaving him surviving a wife and several children. By the will a valid trust was created in the executors of the entire estate for the benefit of the wife during her life. As that trust never took effect, by reason of the death of the wife, it need not be farther noticed. A valid several trust was also created for each of the seven children in one-seventh part of the residue of the estate, real and personal, which took effect in respect to each of the children living at the death of the testator, as to the one-seventh set apart for them respectively. The two-sevenths designed for the two sons that died before the testator, went directly upon the death of the latter to their right heirs, pursuant to the *Page 516 directions of the will, and did not go to the executors in trust for any purpose. The trusts for the children were necessarily several to avoid a conflict with the statute against perpetuities, and the trust in each share or portion was created by a distinct clause of the will for the child named as the beneficiary therein, and was to continue during the life of that child and no longer. The trust being for the leasing of real property, the collection of rents, the investment of the personal estate, the receipt of the income, and the paying and applying the rents and income to the use of the beneficiary for life, an estate was vested in the executors and trustees during the continuance of the trust. That trust ceased with the life of the person for whose benefit the rents and income of the estate were to be applied. The power and direction to transfer and convey the share or portion of the estate to those entitled under the will after the death of the cestui que trust for life did not constitute a trust, or require the estate to be vested in the executors and trustees named. It was merely a power in trust and could be executed as such. The estate and interest of those entitled in remainder did not depend upon the execution of that power, and the vesting of their estate could neither be defeated nor delayed by the neglects or omissions of those vested with the power. (Manice v. Manice, 43 N.Y., 303; Skinner v. Quin, id., 99.) The power of the defendants, as executors and trustees under the will, to sell, is in terms restricted and limited in point of time to the continuance of the respective trusts, and in respect to property to such as is held by them in trust. In the words of the will, the testator gives to them "full power and authority at any and all times during the continuance of such trusts, respectively, in their discretion, to change the investments of the estate and property by them held in trust or any part thereof, and for such purpose or otherwise to grant, bargain, sell, convey, mortgage, lease, transfer and make over as they may deem advisable, all or any parts or part of the real estate or personal property which shall be by them so held in trust." The power is not only in terms restricted to the property *Page 517 held in trust, but was designed to enable the trustees during the continuance of the respective trusts to change the investments, with a view to increase the fund and the income to be derived from it. It is a several power in respect to the property held under the respective trusts, and not a general power embracing the whole estate, and to be exercised so long as any one of the trusts continues, or until a final partition of the estate is made. At the time of the sale to the plaintiff, the trust in respect to the one-seventh devised to Henry Palmer had ceased, and that one-seventh of the estate had vested in his children. Over that portion of the estate the defendants had no power except the naked power to convey to those entitled in remainder. Their power of sale had terminated. (Wood v. White, 2 Keen., 664; S.C., 4 M. C., 460.) The will does not confer upon the executors a power of sale with a view to a distribution among the remaindermen, or in order to give to those entitled their shares upon the death of any one of the cestuis que trust for life, as the successors in interest of such cestui que trust. The direction in the will to ascertain the advancements for the several children, and deduct the amount from their respective shares did not delay or defer the time at which the estate should be divided into shares as directed, or continue or extend the trusts or the trust estate in the defendants. It is not denied that the children of Henry Palmer, the deceased's son, have succeeded to some share or portion of the estate under the will, and whether the same was a full one-seventh or less is unimportant. It was an undivided interest in the real property, including that sold to the plaintiff. It cannot be assumed in the absence of proof that any deduction was to be made from any particular share, still less that the advances made and to be deducted absorbed the entire share. But in no case could the dilatory dealing by the trustees with the estate affect third persons or those entitled in remainder.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 518