In re Christie
13 N.Y.S. 202
N.Y. Sup. Ct.
1891
Check Treatment
Learned, P. J.

Oliver Butterfield died July, 1868. By his will he gave one-third of his estate, real and personal, to his wife, Bhoda. He gave the rest and residue, real'and personal, to his eight children and one grandchild, equally,- except that one daughter was to have half of the amount which otli*204ers had. The legacies were to be paid within a year after the youngest child became 21. He made his wife executrix, and his son executor. He then continued: “I give all my real and personal estate of every kind to my wife, Bhoda, executrix, * * * in trust for the payment of my just debts, and the legacies above specified, with power to sell and dispose of the same.” As there was no authority given to Bhoda, executrix, to receive the rents and profits, no estate passed to her. But this trust was valid as a power,- and the land passed to the devisees subject to the power. 1 Bev. St. marg. p. 729, § 56. Therefore the title to the land vested at once in the devisees named in the will, and all which Bhoda, the executrix, took was a mere power in trust, which enabled her to sell the land and apply the proceeds. She had no estate as trustee. As to the one-third w'hich was devised to her, she could sell and convey that as owner. She held that power in trust as a part of her authority as executrix, not as any independent power. There has been much discussion in the courts whether a power thus given to an executrix to sell land for the purpose of paying debts and legacies passed to the administrator with the will annexed or not. It is not necessary to go back to the old cases, beginning with De Peyster v. Clendining, 8 Paige, 296; for the matter has now been definitely settled by Mott v. Ackerman, 92 N. Y. 539, at pages 553, 554. It is there held that such power belongs to the office of executrix, and passed to the administrator with the will annexed^ This decision is a construction of 2Rev. St. marg. p. 72, § 22, defining the power of administrators with the will annexed; and, thus construed, that section must constitute a practical exception to the-general rule that, on the death of a trustee, the trust or the power in trust vests' in the supreme court. 1 Rev. St. marg. p. 730, § 68; Id. p. 734, § 102. Hence it follows that, if there be any power in trust under this will .yet to be enforced, it must be enforced through an administrator with the will annexed. This is not the case of a power in trust, not connected with the office of executor. On the contrary, if this power be still in existence, it belongs to the office of the executor. And as the executrix is dead, it must be executed, if at all, by an administrator with the will annexed. To hold otherwise would be to disregard the decision last cited, which must be held to have settled the question on which there had been uncertainty.

There are some other difficulties in this case, and we do not intend to decide whether the petitioner is or is not entitled to relief in any court. It is enough to say—First, that this is a mere power in trust which conveyed no estate to the executrix, Bhoda; second, that the jfower, as it is given to pay debts and legacies, and especially as real and personal estate are mingled; belongs to the office of executor, and is not to be separated therefrom; third, that it would pass to the administrator with the will annexed; and, fourthly, that for these reasons it is not for the court to appoint a trustee of the power, and thus to separate it from the office of executor. Whether these petitioners can show themselves at this late day to be creditors of the deceased, and can obtain the appointment of an administrator with the will annexed, we do not decide. 2 Bev. St. marg. p. 74, .§ 27. There has been great delay. It does not appear "precisely when the will was proved. But it is averred that the deceased left personal property worth over $1,000, which, of course, would be the first fund for the payment of the-debts. The executrix died July 29, 1887, and the heirs of the deceased have sold some of the land.

There is another point which should be considered. The will of the deceased provides that no part of his estate shall be sold until all of his children arrive at 21. At his death five were under that age. Therefore the trust power could not be executed until these five had arrived at 21. The estate of the devisees was subject to the trust power, so that they could not convey a clear title until the five minors had reached 21. In Henderson v. Henderson, 113 N. Y. 1, 20 N. E. Rep. 814, at page 15, 113 N. Y.,.and page 818, 20 N. E. Rep., it was held that a clause that executors having a power *205should not be compelled to make partition, etc., until five years from probate, did not suspend the power of alienation; for it was said that the power of sale was not suspended when the executor was merely permitted to delay. Robert v. Corning, 89 N. Y. 225. The present case is different. The executrix is here absolutely prevented from making a sale for a time limited by the arrival of five minors at maturity. And as the existence of this power, if valid, would suspend the absolute power of alienation by the devisees, the suspension, to be valid, may not be beyond the two lives limited by statute. 1 Bev. St. marg. p. 723, § 15. The absolute power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Section 14. Now, the executrix cannot execute the power until the majority of the five minors, and until that time the conveyance of the devisees would be liable to be defeated by the subsequent execution of the power. Hence the power does suspend the absolute power of alienation until that time, and is therefore void. The order should be reversed, with $10 costs and printing disbursements, and motion denied, with » $10 costs. All concur.