All of the parties to this action agree, and the trial court correctly held, that a trust, valid under the Revised Statutes, .was not created by the deed from Mrs. Howland to Mrs. Burton. The-infants contend that the title remained in Mrs. Howland, subject to the execution of the power by Mrs. Burton for the benefit of the infants, while the subsequent mortgagees contend that the title vested in the infants, subject to the execution of the power to sell. The trial court correctly held that the title vested in the infants.. The parties attempted to create an express trust for a purpose not authorized by the statute, and the title vested in the infants under the forty-ninth section of the article of the Revised Statutes,, entitled “ of uses and trusts.”
The mortgagees contend that the deed created a “beneficial power,” while the infants contend that it created a “ power in trust,” which is the only remaining question, and upon the decision of which this case turns. The power authorizes the alienation in fee to any alienee whatever, and it is a “general power.” (1 R. S., 732, §§ 77, 78.). A power is beneficial “ when no person other than the grantee has, by the terms of its creation, any interest in its execution.” (1 R. S., 732, § 79.) “ A general power is in trust,, when any person, or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands, according to the power. (1 R. S., 734, § 94.)
"We think that the deed vests the entire title in the infants, for their sole benefit, and that it confers no beneficial interest in the-land upon the mother, and that she has no pecuniary interest in the land, or in the execution of the jjower. (Hunnier v. Rogers, 55 Barb., 85; aff’d sub. nom. Kinnier v. Rogers, 42 N. Y., 531; 4 Kent’s Com., 318.) The words, “ with power to sell and convey or mortgage without the appointment of a guardian,” indicate an intention, in connection with the other language in the deed, to-vest the title in the infants, and enable the mother to transfer or incumber it for their benefit, without incurring the expense and trouble of an application to the court for leave to sell or mortgage, under the statute, through a special guardian.
The infants answered in this case, asserting their right to the *171surplus. The record does not disclose cross answers on the part of the mortgagees asserting their right to the surplus, or controverting the claim of the infants, but the case having been disposed of in the trial court upon the theory that an issue had been joined between the defendants under section 521 of the Code of Civil Procedure* we have determined this appeal without regard to the regularity of the record. The infants are entitled to the surplus after payment of the judgment of foreclosure and the expenses of a sale, if it goes to a sale.
The judgment is reversed so far as it affects the rights of the defendants in the surplus, and also so far as it awards the subsequent mortgagee’s costs out of the fund, and the infants are allowed one bill of costs on the trial and upon this appeal as against George A. Porter, Erastus F. Iiolden, Edwin R. Holden and the Delaware, Lackawanna and Western Railroad Company.
Hardin, P. J., and Boardman, J., concurred.Judgment reversed so far as it affects the rights of the defendants to the surplus, and also so far as it awards the subsequent mortgagee’s costs out of the fund, and the guardian ad litem is allowed one bill of costs on the trial and upon this appeal as against George A. Porter, Erastus E. Holden, Edwin R. Holden and the Delaware, Lackawanna and Western Railroad Company, and judgment ordered that the surplus be paid to the guardian.