The complaint in this case in form demands equitable relief, but in fact is a disguised ejectment, seeking a recovery of land and the mesne rents and profits thereof. A demurrer was interposed to portions of the answer and has been defended, thus far successfully, by an attack upon the complaint as stating no cause of action. Its allegations furnish the facts with which we are to deal.
Mrs. Bailey died in 1871 leaving a last will and testament, in and by which she directed her executors to sell and convey her real estate at such time or times as seemed to them best and hold the proceeds in trust to pay over the annual income therefrom to her daughters, Matilda Brisbin and Fannie B. Haight, during their natural lives, and, upon the death of each, the principal of her share to go to her then living children. While there was no direct devise of the legal estate in the land to the executors, such an estate in them was essential to the trust, at least for the lives of the two daughters, and to enable the trustees to convert the land into money with which to constitute the trust fund, unless we adopt the only other possible construction, which is that the legal estate descended to the daughters subject to a trust power, the execution of which would divest that legal estate wholly and entirely and vest it in the purchaser buying under the power of sale. Giles Brisbin was the husband of the daughter Matilda. She died in 1876, leaving three children, but while the power of sale remained unexecuted. Soon after her death those children undertook to convey to their father, according to the statement in the complaint, "so much of the interest and income mentioned and provided for in the will of said Catherine S. Bailey as would otherwise come and accrue to said children of said Matilda under and by virtue of the provisions contained in said will for and during the period of the natural life of said Giles." The deed which made this transfer is not contained in the record, nor is the will, except as a copy of its tenth clause is recited in the General Term opinion. Whether we recur to that copy or tie ourselves to the allegations of the complaint, it is equally certain that *Page 155 no interest or income of the trust fund was ever given to the children, at any time, either before or after their mother's death, but, on the contrary, that interest and income was given to the mother during her life, and on her death the principal of her moiety of the trust fund went to the children. Their deed did not purport to convey, and did not convey, to Giles any interest in the land, but only at the most, an interest in the trust fund after the land had become converted into money. The interest of Giles, if he took any at all under the instrument of transfer, was a possible equity in the trust fund and not a legal estate in the land. Upon a judgment against him obtained in 1879, his then interest in the land was sold on execution. But he had no legal estate upon which the lien of the judgment could attach on any theory of the will. If the fee went to the executors for the purposes of the trust, it never vested in Matilda or her children at all and could not pass from the latter to Giles. If it descended first to Matilda and then to her children, it was subject to and liable to be defeated by the execution of the power of sale, assuming that to have survived, which has been executed, and the entire legal estate been transferred to the purchaser. In either event the execution sale passed nothing to the purchasing creditor. If Giles took anything from his children it was at the best but an equity in the resultant trust fund. But the complaint alleges no such equity and is not sufficient to enable the creditor to pursue it. Equitable assets can only be reached after the remedy at law has been exhausted, the evidence of which is the return of an execution unsatisfied. There is no such allegation. It is not easy to comprehend what the pleader intended this complaint to be, but treating it with the utmost liberality it does not disclose a cause of action. It was suggested in the appellant's brief, though scarcely argued at the bar, that Giles was tenant by the curtesy of his wife's land. But on one theory of the will she was not seized at all, and on the other she took only the nominal fee subject with all its incidents to be defeated by the power of sale which has been executed with that effect. And, besides, as the General Term *Page 156 suggest, the purchaser under that sale is not a party here and the right of the tenant by the curtesy is a legal right to be enforced against the claimant in possession.
What I have said is equally true if the trust as to Matilda's half ended at her death or the trust power as to that moiety became incapable of execution after that date, as the General Term opinion seems to indicate. That is one of the possible constructions. But in that event the legal estate in a moiety of the land devolved upon the children. They never conveyed that to Giles nor any part of it. They transferred only an interest in a supposed trust fund which never was constituted and never came into existence.
I have not sought to construe a will not put before us and do not determine what theory of it is correct. But, assuming all possible and suggested modes of interpretation, it is enough that none of them give the plaintiff a right which upon his complaint it is possible to enforce.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.