Mrs. Hoff died in the year 1832, seized of an undivided interest in real estate, and leaving a will devising the income of the same for life to her daughter Mrs. Ryder, the remainder over t > Mrs. Ryder’s children. The executors were empowered, with Mrs. Ryder’s consent, to be signified in writing, under seal, and attested by two or more witnesses, to sell any of the real estate, and to invest-the proceeds in the purchase of other real estate and on bond and mortgage, and Mrs. Ryder was to have the income produced by such *412property so purchased or that produced by the bonds and mortgages in which the proceeds might be invested. It was further provided as follows: “From and immediately after the decease of my said daughter the real estate so purchased and the moneys put out at interest on bond and mortgage shall go to the children of my said daughter share and share alike, and to their heirs, executors, administrators and assigns forever.”
The real estate was not sold under the power in the will; the consent in writing to the executors was not given. A partition suit was brought by Peter Conover and others, after Mrs. Hoff’s death; and in this action her devisees were made parties. A decree was made in Chancery October 7, 1834, whereby the rights of th'e several parties were determined, and it was adjudged that the defendants (infants), Aletta Ryder, Anthony Ryder, Sarah Ryder, Margaret Ryder and Catharine Ryder were each seized in fee of one-tenth of certain of the estate, subject to the life estate of their mother Sarah Ryder; as to other realty set forth in the decree, they were each adjudged to be seized in fee of one-twentieth part, subject as aforesaid. The premises were sold and the proceeds .brought into court and subsequently invested from time to time, and finally came to the hands of the county treasurer, who now holds $5,090, for the distribution whereof this proceeding is brought. It appears that Sarah Ryder was twice married, and died in November, 1858, leaving by her first husband the five children above named, and by her second husband, Daniel Richards, two children, to wit: Elvira and Daniel Richards.
Elvira became the wife of Henry S. Bradley; and she died intestate November 17, 1861, without issue or descendant, and leaving her husband surviving. He took administration of her estate, and as husband and administrator he assigned to the petitioner the share which he claimed to belong to Elvira in the moneys aforesaid.
It is asserted by the petitioner that- the moneys, by the sale' and conversion of the realty became personalty; and that as such the husband of Elvira is entitled thereto.
On the 10th of October, 1859, the supreme court made an order confirming the report of B. D. Silliman, referee, and setting forth that Elvira Richards was entitled, under the- will of Mrs. HofE, to one-seventh of the fund then in court, and directed that such one-seventh being $5,090, be passed to the credit of Elvira Richards, and the interest be paid to her general guardian.
*413On the petition in the pending proceedings a reference to take proof of the matters set forth in the petition, and to state an account of the fund in the hands of the county treasurer, was ordered to George G. Reynolds, Esq.-, who reported; the report ivas confirmed by order May 21, 1869; and the fund awarded to the brothers and sisters, both of the whole and half blood of Elvira Bradley, as her heirs at law. The petitioner filed exceptions to the report, which exceptions were overruled, and he now brings this appeal.
It is to be observed that the fund arose from the sale of realty under a decree in partition, and that the sale was not made pursuant to any will, or by the surrogate’s order for the payment of debts, (2 R. S. 103). Hence the rule in Kellett v. Rathbun, 4 Paige, 102, and kindred cases, that a sale under the provisions of a will converts the proceeds of a realty into personalty, does not apply.
The disposition of the land of infants, by means'of a sale under the statute or in partition, does not change the • character of the estate. Davison v. Defreest, 3 Sandf. Ch. 456; 1 R. S. 752, § 8. And this view of the law is repeated in Horton v. McCoy, 47 N. Y. 21, and Sweezy v. Thayer, 1 Duer, 286.
The controlling feature in the present case is this: The power of sale to the executors of Margaret Hoff,;8 n°t unqualified, but is made dependent on a written consent to be signed and sealed by her daughter, life tenant, in the presence of two or more credible witnesses. This restriction upon the power of sale with the non-exercise of that power prevents the conversion of the realty into personalty which has been argued to result from the mere force of an absolute power in a will.
The order appealed from should be affirmed with $10 costs.
Order affirmed.