In Clark v. Clark (8 Paige, 152) the remarks of the Chancellor relate to land purchased by the executors as such, on a foreclosure sale under a mortgage belonging to the estate of the testator, and he adds to his observations concerning a sale by order of the Surrogate a qualification in these words: “ And in accounting béfore the Surrogate, while the property still remained in their hands unsold, he would be fully authorized to direct a sale thereof, and the distribution of the proceeds as a part of the estate which had come to their hands in their fiduciary capacity, if those who were interested in the estate preferred their share of the proceeds, instead of their share in the land itself.’.’ (8 Paige, 157, 158.)
The will in the case under consideration gives no estate in, or trust concerning, or power over, the testator’s real estate to the executor thereof, except a mere naked power to sell, which power of sale has never been exercised by him, with possibly a right to conduct the Pavilion Hotel for a year. No power is given to him to rent the real estate, or to collect rents therefrom, or to pay any charges thereon. The real estate is not devised to the. executor in trust or otherwise.
Where there is a trust in a will merely to sell real estate, without any other power over the same, it is well settled that such trust is valid as a power only, and that the real estate itself passes to the persons otherwise entitled thereto, subject only to the execution of the trust as a power. (Downing v. Marshall, 23 N. Y., 366.)
Where, as in the case under consideration, there is ■ *234a distinct devise of the lands to the testator’s children, and no devise thereof, or power to collect rents given to the executor, but only a simple power to sell, without even a direction to distribute the proceeds, it seems to me that the fee simple to the real estate of the testator, vested in his children under his will, subject to be divested, if the executor shall ever exercise the power of sale given to him by said will, and that they (the children) are alone entitled to the rents, in their own right, as tenants in common. (Jackson v. Sehauber, 7 Cow., 193; Scott v. Monell, 1 Redf., 441; Catton v. Taylor, 42 Barb., 580.)
From the examination of all the papers submitted on this motion, and the authorities above referred to, I am of the opinion that the fee to the real estate is vested in the children of the testator by the fifth clause of his will; that the executor, as such, has no legal right to collect the rents thereof, except from the Pavilion Hotel property, as provided in said will; and that he has no legal authority or control over the said real estate, except a mere naked power to sell and convert into money, by virtue of the seventh clause of said will, which power said executor has not exercised up to the present time.
I am also of the opinion that the said order, made by my predecessor, dated February 26th, 1873, was not made by him under a mistake or misapprehension on his part of the nature of the property left by the testator, in and by his said will.
It must also be remembered that said order was made by the then Surrogate after hearing the same counsel who have appeared before me on this motion, *235and after mature deliberation thereon; and it would be improper for me to revoke said order, unless I am convinced that some serious mistake or error was made by said Surrogate.
Indeed, it seems to me that a safe rule to follow in respect to the authority of the Surrogate to open, vacate or modify orders and decrees, under chapter 359 of the Laws of 1870 (1 Laws of 1870, p. 826), would be, that that act was not designed to substitute a motion for the ordinary review by appeal.
No motion to open, vacate or modify an order or decree upon the same facts upon which it was made, should be entertained, but the party deeming himself aggrieved should be put to his appeal, and proceedings to open, vacate or modify should be based upon new facts, showing that the order or decree was made without jurisdiction, inadvertently, by mistake or fraud.
The motion should be denied, and the petition should be dismissed.
Ordered accordingly.