I am not able to concur in the reversal of this judgment. On an examination" of the whole record it seems to me that the proofs are insufficient to authorize the court to grant the relief prayed for by the plaintiff.
The action, although in form one for the construction of the will of George Hess, is in reality one to authorize the carrying out of a contract of sale of premises mentioned in the complaint, which contract was made between the plaintiff individually and as executrix and trustee of the will of George Hess, as vendor, and one Louis Boossin, as vendee. That contract of sale was entered into on the 26th day of February, 1907, and seems to have been executed about six months before this action was begun, according to the date'of the *754summons. It provides for the sale by the party of the first part for. $55^000, of the property described in the' complaint $500 to be paid on the execution of the agreement — which sum seems.to have been paid1 — $10,000 by taking the premises subject to a mortgage then a lien thereon, the sum of $35,000 to be secured by a. purchase-money mortgage for that amount,, and the balance of $9,500 to be 'paid in cash or by certified check at the • time' and place of the delivery of the deed. The contract then proceeds to state: “ It being understood and agreed that this contract is. subject to the approval of the Court upon an application which the party hereto' of the first part is to make for leave to sell the premises hereinbefore described, it being understood and agreed that in the event of the Court refusing to approve of the sale, then and in such case the sum of Five hundred Dollars hereon paid shall be returned by the party of the first part to the party of the second part, and this’ contract shall thereupon be null and void.” This Contract is set out in the complaint and.annexed to it in full as one of its schedules. The plaintiff alleges that after she had entered into the cóntractún good faith and relying upon the validity of the will and attempting to carry out the provisions and directions therein contained, the purchaser questioned the sufficiency and validity of a power of sale contained in said last will and testament and refused to complete •the contract; that the plaintiff insists that a power of sale is given by the will to her, as the sole acting trustee, to sell the premises either at public or private sale and she alleges that a.necessity exists for the exercise of that power of sale because the premises are dilapidated, greatly out of repair and that a requirement has been made by the building department under the.Tenement House Law that various changes and^ alterations shall be made in the structures which will cost at least $3>-000; that there are- no funds in her hands or in the estate of her testator from which those repairs and changes so required can be made, and that it would be ad vantageous to all parties -that the property be sold and the investment1 thereby changed from real into personal property.
It seems to be clear that the question of the right of the trustee to sell and convey was in the minds of both vendor and vendee at the time of the execution of the contract; for, as above stated, it is recited in this instrument that it is made conditional Upon the *755approval by the court of the sale,' and that the plaintiff'should apply to the court' for" leave to sell the premises in accordance with the contract, and that if permission to do so were refused the deposit money should be returned and the contract thereupon be at án end. It is true that the action is not brought under the terms of the agreement — the plaintiff does not aslc the court to approve of the particular contract of sale; such a contract, if made under a power of sale, would not require judicial approval, and if not so made, could hot be approved by the court. The property is held in trust, and the Supreme Court has no power to destroy the trust, as the testator created it. It is ordinary learning that, where an express trust is created in an instrument creating an estate, every sale, conveyance or other act of the trustee in contravention of the trust shall be absolutely void. (Cruger v. Jones, 18 Barb. 467; Cuthbert v. Chauvet, 136 N. Y. 326.) Therefore, this agreement of sale set up in the complaint, and referred to in the record, can perform no office whatever in the determination of this case; and authority to sell this real estate must be gathered, if at all, from the provisions of the will of George Hess.
I am not able to concur in the views of the majority of the court that any such power of sale to change the investment from realty into personalty, or for the purpose of complying with the requirements of the building department or the tenement house department, is given by the will. Apart from the fact that the proof fails to show what the exact requirements of the building' department are in connection with these alterations or changes, looking over the whole will to ascertain the intention of the testator, it is plain to my mind that'he intended that his estate should remain undisposed of and undivided until after the death or remarriage of his widow; and that was his prime intention. By the 1st clause of his will the testator gives all his real and personal property of every kind, wheresoever situated, including his business, to his executrix and executors (such executors having since resigned their trust and been discharged therefrom), “ in trust, nevertheless, to hold, manage and conduct the same and accumulate the rents, issues, profits and income thereof for the uses and purposes hereinafter mentioned, until either the re-marriage or death' of my said wife, but not in any wise to dispose of the same, nor of any part thereof, until the happening *756of either of said events, except as hereinafter provided?'’ Then he proceeds to direct the executrix, and executors to pay and discharge “all taxes,.assessments, interest, insurance, incumbrances, claims and demands whatever upon or against my said estate, and then divide the net rents, issues, income and profit of my said estate, at the close of each and every year, until either the re-marriage or the death of my said wife, equally among my said wife and my children, share and share alike.” Then he directs how the distribution shall be made on such remarriage or death of his widow and then provides that the life estate of his wife and certain policies of insurance upon his life in her favor shall be taken by her in ljeu of dower, to which she would otherwise be entitled. Provision is then made for the continuation of his business. After nominating his executrix and executors and trustees, he proceeds to say in the 6 th clause: “I give and'grant unto my said Executrix and Executors all necessary and proper powers to pay and- discharge- all incumbrances, claims and demands whatever upon or against my said estate, raise money thereon, make, execute and deliver leases, bonds and mortgages, powers of attorney, deeds and conveyances in. the law, effectual to carry out the uses, provisions, intents and- purposes of this my Last Will and, Testament as fully as I myself could, and as in their best judgment they may deem in and for the best interests and benefits of my said Estate, and to sell at either public or private sale.”
The contention now-made is that under this last quoted clause-of the will, a power of sale of this real estate is given and that it is shown that the sale is necessary in order to carry out some' of the uses and provisions, intents and purposes mentioned in-the will; and that the time at or the event in which it becomes necessary to sell the property is a matter resting in the absolute discretion, of the executrix and trustee.
I do not construe this power as being broad enough to authorize the sale of these premises. It is given and granted to pay and discharge all incumbrances, claims and demands whatever upon or against the téstator’s estate; to raise money thereon, to make, execute and deliver leases, bonds and mortgages, powers of 'attorney, - deeds and conveyances in the law, effectual to carry out the uses, provisions, intents and purposes of the will;.but the power to *757convey or grant must be in connection with something absolutely necessary to effectuate some use or provision of the will. It is not shown that a sale of these premises is necessary to carry out any use or trust or purpose mentioned in or inferable from any provision of this will. All that is alleged is that it would, be advantageous to sell the realty and to change the form of the trust from one of realty to one of personalty. There is not an iota of proof which shows any necessity therefor. The situation is clear. The premises are worth $55,000; they are incumbered to the extent of $10,000 by a first mortgage for that amount, which leaves' a margin of $45,000. It cannot be possible that the amount required for mating the alterations, said to be required by the tenement house department, which is alleged in the complaint to be about $3,000 or $4,000, cannot readily be raised by mortgage; and under the general power quoted from the 6th clause of the will the executrix has ample power to raise money by mortgage in relief of the estate and one of the purposes of the will is the preservation and not the destruction of the trust in the form in which it exists under the interdiction of the 1st clause, and “a court of equity by virtue of its general jurisdiction over trusts and trustees can upon a proper state of facts direct how their discretion shall be exercised ; in other words, how the trust fund shall be administered.” (Ireland v. Ireland, 84 N. Y. 326.) That may result in a small reduction of the annual income of the plaintiff, but that would arise from the situation into which the property lias fallen.
With these views, I must dissent from the reversal of this judgment.
Clarke, J., concurred.
Judgment reversed and new trial ordered, without costs.