Argued December 10, 1884
Decided January 20, 1885
Payson Merrill for appellant.
William G. Wilson for respondents.
The intention of the testator, manifested by his will, to vest in his executors the legal title to his real estate, in trust, was ineffectual, notwithstanding the express devise to them, unless the devise was upon one or more of the express trusts authorized by statute. The attempt of a testator to devise his lands upon an unauthorized trust does not intercept the passing of the legal title to his heirs or ultimate devisees or beneficiaries. The statute to this extent frustrates a testator's intention, but it preserves it so far as to enable the trustees to perform the trust through the medium of a power, as to such acts as he is authorized to perform, and for the performance of which a power could be lawfully created. (1 R.S. 728, §§ 55, 58, 59.)
We are of opinion that no trust estate in the testator's land was created in the executors of the will. The main purpose of the testator was to give his estate remaining after payment of his debts, equally to his four children. He imposed upon his executors the duty of making the division, and this was the declared purpose of the trust.
If there was nothing further in the will there could be no question. The statute does not authorize the creation of a trust for the partition of lands. But a power may be created for this purpose, and the devise to the executors, though void as a trust, may be valid as a power to divide and distribute. The only doubt, in respect to the legal validity of the trust, arises from the discretionary power of sale vested in the executors, together with the right to receive the rents and profits, and income of the real and personal estate prior to the division. The statute authorizes a trust to sell lands for the benefit of creditors and legatees (§ 55). But we are of opinion that it is essential to the constitution of a valid trust for either of these purposes, that the power of sale conferred upon the trustees must be absolute and imperative, without discretion, except as to the time and manner of performing the duty imposed, and that it is not sufficient to invest the trustee with a merely discretionary power of sale, which he may or may not exercise at his option, and which does not operate as a conversion. The sale or other disposition mentioned in the statute must be the direct and express purpose of the trust. Any other construction would open the door to an evasion of the manifest intention of the legislature to prevent the separation of the legal title and beneficial interest in lands through the medium of a trust, except in the specific cases and for the precise purposes enumerated in the statute. In the will in question, not only is the power of sale conferred upon the executors discretionary, but it is apparent that it was incidental to the testator's main purpose in constituting the trust, to provide for a division of his estate by his executors. Nor can the trust be sustained as a trust to receive the rents and profits of land, under the third subdivision of section 55. There is no direction to apply them to the use of any person or for any period. When received they are distributable, not as rents and profits, but because incorporated into the mass of the estate, to be divided by the executors. (See Heermans v. Burt, 78 N.Y. 259.)
The only remaining question relates to the authority of the receiver to execute the power of sale vested in the executors. The power of sale was a power in trust, which, although discretionary, could, on the death or removal of the executors, be executed under the direction of the court, by a trustee appointed for that purpose. (1 R.S. 731, §§ 71, 102; Leggett v. Hunter, 19 N.Y. 445, and cases cited; Roome v. Philips, 27 id. 357.) But we are of opinion that by the true construction of the judgment appointing the receiver, he was invested with no greater power than that of administrator with the will annexed. The point must now be deemed to be settled that an administrator with the will annexed cannot execute a discretionary power of sale vested in executors. He succeeds to the power of sale given to the executor, only when the direction to sell is imperative. ( Mott v. Ackerman, 92 N.Y. 540 and cases cited.)
Our conclusions are; first, that no valid trust was created in the testator's real estate by the will in question; second, that the four children of the testator are vested with the title to the real estate of the testator, as devisees in fee under the will; third, that the receiver in the action has no authority to execute the power of sale given to the executors.
There are no other questions involved in the determination of this appeal.
The order should, therefore, be affirmed, with costs.