Although the complaint in this case was filed for an accounting, as well as to enforce the execution of a power in trust for the benefit of the several beneficiaries thereunder, yet the findings of the referee and the judgment entered thereupon have substantially reduced the action tó ohe for the enforcement of a power. Nothing is found by the referee upon which an accounting could be ordered, and the judgment gives no directions in respect to any accounting.
In regard to the lands described in the report of the referee and in the judgment, the will contains a very plain power in trust, which it vests in the persons named as executors and executrix, with specific and plain > directions as to the time of its execution.
The testator directs that “at and after” the decease of his wife, all the remainder of his real estate shall then be sold and conveyed, and authorizes Ms executrix and executor to sell and convey the same, dividing the proceeds among Ms cMldren and grandchildren as specially directed.
It is not questioned by either side but that the fee of ■the lands affected by the judgment descended to the heirs-at-law of the testator, subject to the execution of the power. The defendants herein insist that the execu*257tor and executrix, who are devisees of the power, are clothed with a discretion as to the time when such sale should be made, and may exercise the same by declining to make the sale until it will be more advantageous than an immediate one. But no such discretion has been given by the testator. The words “at and after the decease of my wife” simply fix the point of time when the power shall vest in the executor and executrix. And the direction that the real estate “ shall then be sold and conveyed,” leaves no room to doubt that the power was to be presently executed.
In this case a large majority of the beneficiaries under the power were desirous to have its execution postponed till the expiration of the outstanding leases, and it is not difficult to see that if all could have concurred in that view, it would have been better for the interests of every one. But that fact, while it tends to show good faith on the part of the executor and executrix, is by no means controlling of the legal rights of the plaintiff.
The statute provides that “every trust power, unless its execution or non-execution is made expressly to depend upon the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity for the benefit of the parties interested.” (1 R. S. 734, § 96.)
In this case, neither the execution nor non-execution, partial or complete, of the trust power, is made expressly to depend upon the will of the grantees. Its immediate execution could therefore be enforced by any or either of the beneficiaries. The judgment, so far as it directs the immediate execution of the power, is correct and should be affirmed. But we think some of the other provisions of the judgment cannot be upheld. The referee having found, as matter of fact, that both the executor and executrix are non-residents of this State ; and that the former is insolvent; and that they do not *258agree as to the management of the estate in respect of matters for which an accounting is pending before the surrogate, finds, as a conclusion of law, that they should give security in the form of a bond to the people of this State, in the penalty of $80,000, with two sufficient sureties, for the faithful performance of their duties under the will, and to pay over the proceeds of the sale or sales to be made by them, to the persons entitled thereto, within twenty days after notice of the judgment, or, in default thereof,i that they be removed and a trustee appointed in their place to carry out the provisions of the will; and a judgment has been entered in conformity to this direction.
When we consider that under our statute the executor and executrix under this will are grantees of a beneficial and irrevocable power in trust, (1 R. S. 735, § 108; Id. 738, § 135;) and that such power is vested in them jointly and not severally; and as devisees or (to use the statute language) as grantees thereof, and not as executors, (Dominick v. Michael, 4 Sandf. 374;) and that both must unite in its execution, unless one be dead, in which case the statute provides that the survivor may execute it, (1 R. S. 735, § 112;) and that the execution must be by an instrument with the formalities, and sufficient in law to pass the estate, as if the person executing the power were the actual owner, (Id. 735, 736, §§ 113, 117;) it is difficult to see how the court can divest Mrs. Herrick and Mr. Van Boskerck of the trustees’ power devised to them by the will because of their non-residence, or poverty, or inability to agree in the settlement of then-accounts as executor and executrix. Hor can the court hamper its execution by the imposition of bonds as security for performance, and impose a forfeiture of the-estate as a penalty for not executing the bonds. The most that the court can do is to compel them to execute the power by selling and conveying; and in that man*259ner only, in the condition of things existing in this case, can they be divested of the power conferred upon them by the testator. But while Mrs. Herrick and George W. Van Boskerck are the only persons who can sell and convey the real estate under the power, I have no doubt that when the equity powers of the court are invoked to set them in motion, it has authority, in a proper case, while compelling the execution of the power by them, with the formalities necessary to carry the title of the real estate, to make provisions in regard to the proceeds that will effectually secure the same to the several beneficiaries. The proper mode, in cases of danger of loss, would be to require the money to be paid into court for distribution; and the court can doubtless direct this to be done either absolutely, or on failure of the parties to give satisfactory security for the distribution of the fund after it reaches their hands. The grave error in this case is that the judgment undertakes to divest the power by taking it out of the persons to whom it is devised, on failure to give the prescribed bond, and to vest it in some trustee of its own nomination. It is extremely doubtful whether a title conveyed by such substituted trustee would be of any value.
The provisions of the Revised Statutes relative to trusts, (1 R. S. 730, 731, §§ 70-72,) relate to the “express trusts” treated of in that article, and have no application to the case now in hand.
The judgment must be modified by striking out the several directions relative to the bond to be given, and the appointment of another trustee to execute the power, and the judgment must be re-settled by this court, before one of the justices thereof, and as so modified, affirmed, without costs to either party as against the other on this appeal.
The appeal from the order made by the Special Term, on" application for the appointment of a substituted *260trustee, is necessarily disposed of "by this decision. The order made below should be reversed altogether, and the motion denied, without costs to either party.
[Rest Department, General Term, at New York, January 6,1873. Ingraham and Bams, Justices.]