116 N.E. 1001 | NY | 1917
The proceeding, instituted by a petition, is under sections one hundred and five and one hundred and seven of the Real Property Law (Cons. Laws, ch. 50). It seeks an order of the court authorizing and directing the petitioner, John H. O'Donnell, as successor trustee under the will of James O'Donnell, deceased, to sell the real estate devised to and controlled by the trustee. The Special Term granted the order, upon conditions irrelevant to the question presented to us, which the Appellate Division reversed, and erroneously, upon the *200 ground that the court had not the power to order the sale of the estates in remainder.
The cardinal facts are: The will was probated in 1874. It devised the real estate in trust during the life of Olivia C. O'Donnell, the widow of the testator. It directed the trustees to control and pay the net income from the real estate to her during her life, and that no part of the real estate should be sold until after the arrival of the youngest son of the testator at the age of twenty-one years, nor until after the decease of his wife — the latter of which events has not occurred. It devised the remainder estate to testator's four sons. Infant remaindermen are the respondents here. Through causes which need not be detailed, the gross income from the real estate through the several years last past has not equalled and now falls far short of equalling the taxes levied upon it, while its value has greatly increased, and indisputably and obviously the conservation and existence of the trust estate and the creation of an income for the widow require the sale of the real estate. The guardian ad litem states in his brief for the infant respondents: "The guardian may be permitted to say here that if the court had the power to make the order asked for, ample grounds are shown by the petition and other records to justify the exercise of that power in favor of the granting of the order." The trustee has entered into a contract, subject to the approval of the court, to sell the real estate for the fair and adequate price of one hundred and forty-eight thousand dollars. All the surviving adult remaindermen filed their written consent that the order be granted.
The petitioners correctly and necessarily invoke statutory provisions as the sole source of authority to order the sale. The court does not possess, inherently, the power to order a sale or mortgaging of an infant's real property. (Losey v. Stanley,
We did decide in Losey v. Stanley (
In March, 1897, chapter 136 of the laws of that year was enacted. It amended the Statute of Uses and Trusts as presented to us in the Losey case in such wise that it contained the provisions of sections one hundred and five and one hundred and seven of the Real Property Law, quoted by us, with a single difference. It provided that a mortgage, conveyance or lease made pursuant to a final order should be valid and effectual against incompetent persons "and persons not in being interested in the trust or having estates vested or contingent in reversion or remainder in said real property, and against all other persons so interested or having such estates who shall consent to such order, or who having been made parties to such proceeding as herein provided, shall not appear therein and object to the granting of such order." This provision was amended by chapter two hundred and forty-two of the Laws of 1907 by omitting from it the words "shall not appear therein and object to the granting of such order," and by changing the words "having been made parties" to "have been made parties." Our *204 decision in the Losey case thereby became inapplicable to cases which arose after the adoption of the act of 1897. A reading, in comparison, of chapter 257 of the Laws of 1886 and the sections of the Real Property Law in question discloses with so great clearness and certainty the correctness of such statement that we deem it needless to state here a detailed and comparative analysis of those provisions. The language of the sections expresses clearly, as we have already stated, the legislative intention that the Supreme Court may, speaking generally and regardless of cases involving exceptional facts, order a trustee to sell all the interests constituting the title in fee simple to real property of the trust estate under the facts and conditions prescribed by them. Their provisions justified and authorized the order of the Special Term which the Appellate Division reversed.
Our decision in Matter of Easterly (
We do not decide or state that we have heretofore decided the question as to whether or not the sections in question of the Real Property Law validly and in fact authorize the court to order the sale or mortgaging of the estates in remainder of adult parties to the proceeding without their consent for the purposes specified in the statute. The non-consenting remaindermen here are infants.
The order should be reversed, and the order of the Special Term affirmed, without costs.
CHASE, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order reversed, etc. *206