That the statute of limitations was no bar to the claim of the creditor, or to his instituting this proceeding for the sale of the real estate of the deceased for the payment of this debt, was necessarily involved in and disposed of upon the former appeal.
The finding of the surrogate that the personal property of the-deceased was wholly insufficient to pay his just debts and funeral expenses is justified and required by the evidence. The will of the testator did not authorize any of his real estate to be applied in payment of his debts, except mortgage debts, and in that case the mortgaged parcel was to be applied in payment of the mortgage debt. The will, it is true, did authorize the executor to sell certain, parcels of real estate, not, however, for the payment of debts, but that the proceeds might be divided among certain beneficiaries. The will did not contain any devise of this real estate to the executor, but with respect to it declares: “ I hereby authorize and empower my executor to sell and dispose of it, at such time or times and in such manner as he shall deem advantageous,” and then follow elaborate provisions for the disposition of the proceeds. He then authorized his executor to lease said real estate and collect the rents “ until such time or times as he shall deem it advisable to sell and dispose of the same,” and he directed the disposition of the rents. The will gave to the testator’s widow his personal property, after the payment of his debts except his mortgage debts. The executor did sell a parcel of this land for $7,500. If by the will this land was converted into personal property “ out and out,” for all the purposes of administration, then the executor should account for it in this proceeding. The surrogate held that the testator, by his will, did not convert any part of this real property into personal property for the payment of debts, and upon this finding rested his further finding that the personal property of the testator was insufficient for the payment of debts.
We think the testator intended that for the purpose of the division of this real estate among his beneficiaries in the manner indicated by him, it should be converted into money. It would be difficult to carry out the scheme of his will otherwise. He does not devise this real estate to any one, but does make disposition first “ of $1,000 of the proceeds thereof,” and then of “the rest and residue *448of the proceeds of my real estate and lands herein above directed to be sold,” thus indicating that the authority he gave to his executor to sell was equivalent to a direction to sell. We think there was an equitable conversion. (Power v. Cassidy, 79 N. Y., 602 ; Lent v. Howard, 89 id., 169; Fisher v. Banta, 66 id., 468; Dodge v. Pond, 23 id., 69; Chamberlain v. Chamberlain, 43 id., 424.)
But we do not think it was a conversion out and out for all purposes of administration, so as to be made applicable as personal property to the payment of the testator’s debts.. In Fisher r. Banta, the court say : “ The conversion may be entire, embracing the whole estate, or partial, extending only so far as is necessary to satisfy special purposes indicated in the will. The matter to be considered is the intention of the testator. The conversion, whether absolute to all intents or partial only, is the one or the other, because the purpose of the will, i. e. the intention of the testator, was that the conversion should be general or partial for all purposes, or for limited purposes only.”
It is apparent from the will that the testator supposed he had personal property enough to pay his debts, except his mortgage debts, and that as to the latter the mortgaged land was sufficient or more than sufficient to satisfy them. It probably never occurred to him that any of his other real estate would need to be applied to the payment of his debts, and, therefore, when he directed that certain of his real estate should be converted into money, he thought only of the money as a convenient means of division and form of gift. The testator manifestly did not intend to give to this rea.1 estate the' quality of personal property for all intents and purposes, but only for the purposes of division, and as his intent, as expressed by the will, would govern, this real estate did not become personal property for the payment of his debts. (Story’s Eq, § 793, note 2.)
It was proper for the executor to present his account in writing, to the end that the same might be made the basis of common law-proofs and a common-law examination. The facts which the creditor had to establish were that “ all the personal property of the decedent, which could have been applied to payment of the decedent’s debts and funeral expenses, has been so applied, * * * and that it is insufficient for the payment of the same as established by the decree.” (Code, § 2759.) Clearly it is the duty - of an *449executor to keep an account. That lie has done so is proved by his production of it. But the truth of that account is not thereby proved. The executor is called as a-witness and subjected to a common-law examination, and it is upon this common-law evidence that the surrogate determines the facts.
The real estate in question, known as the “ Dodge farm,’’ is vested in the testator’s devisee, Catharine E. Dodge, by virtue of the will. We think this was the clear intimation of the Court of Appeals when her title was there established. (Dodge v. Stevens, 94 N. Y., 209.) But, independently of that intimation, the following considerations lead to the same conclusion: A fee may be limited upon a fee upon a contingency. (1 R. S., 724, § 24.) The second fee is a future estate. (Id., 723, § 10.) Future estates are either vested or contingent. (Id., § 13.) These words are used in. opposition to each other. An estate cannot be both vested and contingent. It is contingent when the event upon which it is limited to take effect remains uncertain. (Sec. 13.)
In this case the remarriage of the widow was an uncertain event, and, therefore, the creation of this future estate was only inchoate, and could not ripen into an actual creation thereof until the uncertain •event transpired.
The common law was to the same effect. Thus, in Boraston’s case (3 Coke’s Rep., 20): “ When a remainder is limited to take effect on the doing of an act, which act will be the determination of the particular estate, yet if the act depends on a casualty and mere uncertainty whether it will ever happen or not,' there, also, the remainder doth depend in contingency and shall not presently vest.” This •devise to the daughter, although falling within the definition of “ a fee limited upon a fee upon a contingency,” may also fall within the definition of section 27, which provides that a remainder may be limited on a contingency which, in case it should happen, will operate to abridge or determine the precedent estate. “ Every such remainder,” the section provides, “ shall be construed a conditional limitation, and shall have the same effect as sncli limitation would have at law.” The revisers in their notes state the effect of a conditional limitation, to be, that when the condition is broken or performed the remainder commences in possession, and the person entitled, under - it .lias an immediate right to the estate. (4 Kent, *450250.) But liow was it in the meantime ? At common law this devise to the daughter would have been an executory devise, and by force of the term executory the implication is that no title vests until the devise is executed by the happening of the condition.. The distinctions necessary to be noted are well pointed out in Proprietors, etc., v. Grant (3 Gray, 142). Speaking of the conditional limitation in an executory devise, it is remarked : “ The-limitation over being executory and depending on a condition or an event, which may never happen, passes no vested interest or estate. It is impossible to ascertain in whom the ultimate-right to the estate may vest, or whether it will ever vest at all, and, therefore, no conveyance or mode of alienation can pass an absolute title.” (Page 148.) If the infant were competent to contract she could release to her mother, the devisee of the first fee, the right to her possibility. (Miller v. Emans, 19 N, Y., 384.) This for the reason that while public policy forbids the sale of a mere contingency, it favors the merger of the whole title in the-present owner in possession. This remainder, the statute says, shall be construed as a “ conditional limitation,” not an absolute limitation. It can only pass when -the condition happens. What title has the remainderman ? The simple right to await the happening of the condition and then to avail himself of it. In Kenyon v. See (94 N. Y., 563) it was held that before performance of the condition nothing vested, but that it was possible that the conditional legatee, by his assignment of his interest to the first taker, would be barred as by estoppel. The point was not decided.- But an infant 'cannot be estopped by matters in pais.
The sale, by the court, of this possibility was invalid because-both unauthorized and forbidden by the statute. The statute does not authorize the sale of such a possibility, but of lands whereof the infant is seized. (2 R. S., 194, § 170.) To sell the.possibility before the devise took effect would be to defeat the devise itself, and that the statute forbids. (Id., 195, § 176.)
It is suggested that the devise to Catharine created an expectant estate, and expectant estates are alienable. (1 R. S., 725, § 35.) But they are not alienable by the court unless the infant is seized of them either in fact or in 'law. There was no seizin in fact, and there could be none in law until the infant’s title had accrued. It *451may bo doubted whether the devise to the daughter was of an expectant estate under the definition given by the statute. This definition is of estates “ as respects the time of their enjoyment.” (Id., 722, § 7.) Here the future contingent event had respect to the going into effect of the devise itself. The gift was postponed, not the time of its enjoyment, for the right to enjoy was complete eo imtanti the gift was complete.
It may be asked why is not this a vested interest under the statute as expounded in Moore v. Littel (40 N. Y., 66). Here, as there, you can point to the person who would have an immediate right to the possession of the lands upon the ceasing of the precedent estate. The answer is that there the remainder was absolutely given to somebody, here it was not. A remainder existed and if you could point to its next owner upon the present determination of the present title the next owner is presently vested with his expectant title. Here no subsequent title is created, and .until it shall be, it cannot exist. Time is annexed to the substance of the gift and the vesting is postponed. (Delaney v. McCormack, 88 N. Y., 183.)
It follows that chapter 211, Laws 1873, forbidding the sale of the real estate of the deceased for the payment of liis debts where it has passed out of the heir or devisee, by conveyance or otherwise, to a purchaser in good faith, unless application for such sale be made to the surrogate within three years after granting of letters testamentary, does not affect this case.
We do not think that the surrogate was required to pass upon any requests to find, except upon the settlement of the case under section 2545 of the Code. Section 1023 does not apply. (Hartwell v. McMaster, 4 Redf., 389.)
The surrogate had a discretion limited by law, as to the amount of costs he should allow the special guardian of the infant devisee. Section 2561 of the Code fixes the limit in eases of contest to seventy dollars in addition to the disbursements. We are cited to cases to the effect that this limit does not apply to special guardians in Surrogates’ Courts. (Matter of Budlong, 33 Hun, 235; McCue v. O'Hara, 5 Redf., 336.)
The case in Hun was decided, however, upon other grounds. Grant that independently of the statute the court had the power *452to allow to a special guardian reasonable compensation, that compensation should be for costs and expenses. 'Wiry else should he be paid anything from the fund \ Clearly it was competent to regulate such costs and expenses by statute. Code (§ 474) speaks of this allowance a3 “ costs and expenses,” and section 2561 fixes the limit to the “ costs,” which, in addition to the disbursements, the surrogate may, “ as he deems reasonable,” allow. It may be conceded that cases of hardship to the attorney may arise under this construction, but if it is not to obtain, cases of hardship to the infant will also arise. Nothing is more difficult justly to administer than discretionary allowances, and where the statute has set a limit it should be upheld not only as a relief to the courts but as a protection to clients.
The decree of the surrogate should be affirmed, with costs, including those of the special guardian, to be paid out of the fund.
Bockes, J., concurred.