Bradley, J.:
The action was founded upon a mortgage made by the defendants Sarah A. Storm and Harmin V. Storm to George H. Roberts, the plaintiff, on the premises in question in June, 1890, to secure the payment of $3,600. Harmin V. Storm was the beneficiary of the trust hereinafter mentioned. He had no estate in the land. (1 R. S. 729, § 60.) The interest of Sarah A. Storm was. derived from a deed made by Jacob Yandehberg, the surviving executor of and trustee of and under the will of Sarah Storm, deceased, to her, of date June 19, 1889. By her will she devised the premises to the trustees named or the survivor of them “ in trust to receive the rents, income and profits thereof, and apply the same to the use ” of her son, Harmin V. Storm, during his life, and subject to the trust and power of sale she devised the premises “ to the children or child of said Harmin V. Storm, if any, living at his death, and the descendants of any such child then deceased as shall have left descendants then living. Such descendants of each deceased child to take only the share their deceased parent would have taken if living.” The testatrix in like manner devised certain other real property to such trustees in trust, to receive and apply the income to her other son, Peter L. Storm, and devised the remainder to his descendants. Then, if either of those sons should die leaving no descendants, she devised the entire estates in remainder of the properties to the descendants of the other son. And she gave to the trustees or the survivor of them full power to sell and convey any or all the real property within the trust, during its continuance, for the purpose of changing the nature of the investment.
[238] The testatrix died in the year 1861. The deed of conveyance of the surviving trustee to Sarah A. Storm-was not made for the purposes contemplated by the power of sale given by the will. It was made for a meite nominal consideration and for the purpose of shifting the title to the grantee, who was the wife of Harmin V. Storm; But it was made at the request of him and of his three children, then, of full age, all of whom joined in-the execution of an instrument under seal reciting the making and delivery of the deed and declaring that they released and discharged him, as executor and trustee under the will and individually,..fully from any liability to them' and their heirs, etc., and by another instrument'they, in terms, relieved him from the trust and undertook to indemnify-him against any liability arising out of his relation as such trustee or individually. ’ The three children of Harmin Y. .Storm had vested-estates1 in remainder" in the premises, subject to be defeated by their death before that of their father. (1 R. S. 723, § 13.) And such estates were alienable-, by them. . (Moore v. Littel, 41 N. Y. 66.) In that view" it wouldseem that those children Were, by their request to. have the deed made to Mrs. Storm, and by the instruments executed by them, barred or estopped from asserting any claim or estate in the premises embraced within the deed so made by" the trustee to her." ■ The cases relied upon by the appellant’s counsel to support his contention,.that those children of the beneficiary of the trust had no vested estate in the remainder, do not, in the view taken of them, have any necessary application to the situation hr the present case. In those cases provision was made for something to be done in the future to vest the residuary gift or estate in the persons designated to receive it. In such case the vesting is deemed deferred until that is done. Such was the unreported case of Paget v. Hoadley. In the case at bar the estate in remainder was devised by the will, and-consequently no intent is manifested to suspend the operation of the devise to* the children of the son of -the* testatrix, but she, by the terms of the will, disposed of the entire estate in the premises,' of which they took by the devise the defeasible estate in remainder. There was a further contingency dependent upon the death of all the descendants of Harmin V. Storm before his death. • In-' that event the remainder would' go- to the other son, Peter L. Storm, of-the testatrix, or1 his descendants if he or they survive. This contin-1 [239] gency was quite remote in view of the fact that the three children of Harmin Y. Storm are still living and one of them has two children. And while it may not be probable that he will pass over the graves of all of two or more generations of his descendants into survivorship of them, yet it is possible that he may do so and that such contingency may arise if Peter L. Storm is still living. But as it does not appear by the petition of the appellant that he is living, and as no suggestion is made by counsel on the subject of such a contingency, it may be. assumed that, by the death of Peter L. Storm without leaving descendants, it has ceased to exist. It appeared in the notice of sale of the property in execution of the judgment of foreclosure that, pursuant to an order of the Supreme Court, the title to the property “ described and intended to be.sold is subject to be defeated in whole or in part if the children of Harmin Y. Storm, namely, Samuel G-. Storm, Eleanor L. Houghton and Sarah Y. Yan Brunt, or any of them, should die before their said father, Harmin Y. Storm, leaving a child or children them surviving, and this property is sold subject to such contingency.” By this announcement in the notice and at the sale, it may fairly have been understood by the purchaser that such were the only contingencies upon which the title of the property to be sold could be defeated, wholly or partially, by any adverse claim. And if such were the case the purchaser could not be relieved from his purchase.
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Bradley, J.:
The action was founded upon a mortgage made by the defendants Sarah A. Storm and Harmin V. Storm to George H. Roberts, the plaintiff, on the premises in question in June, 1890, to secure the payment of $3,600. Harmin V. Storm was the beneficiary of the trust hereinafter mentioned. He had no estate in the land. (1 R. S. 729, § 60.) The interest of Sarah A. Storm was. derived from a deed made by Jacob Yandehberg, the surviving executor of and trustee of and under the will of Sarah Storm, deceased, to her, of date June 19, 1889. By her will she devised the premises to the trustees named or the survivor of them “ in trust to receive the rents, income and profits thereof, and apply the same to the use ” of her son, Harmin V. Storm, during his life, and subject to the trust and power of sale she devised the premises “ to the children or child of said Harmin V. Storm, if any, living at his death, and the descendants of any such child then deceased as shall have left descendants then living. Such descendants of each deceased child to take only the share their deceased parent would have taken if living.” The testatrix in like manner devised certain other real property to such trustees in trust, to receive and apply the income to her other son, Peter L. Storm, and devised the remainder to his descendants. Then, if either of those sons should die leaving no descendants, she devised the entire estates in remainder of the properties to the descendants of the other son. And she gave to the trustees or the survivor of them full power to sell and convey any or all the real property within the trust, during its continuance, for the purpose of changing the nature of the investment.
[238] The testatrix died in the year 1861. The deed of conveyance of the surviving trustee to Sarah A. Storm-was not made for the purposes contemplated by the power of sale given by the will. It was made for a meite nominal consideration and for the purpose of shifting the title to the grantee, who was the wife of Harmin V. Storm; But it was made at the request of him and of his three children, then, of full age, all of whom joined in-the execution of an instrument under seal reciting the making and delivery of the deed and declaring that they released and discharged him, as executor and trustee under the will and individually,..fully from any liability to them' and their heirs, etc., and by another instrument'they, in terms, relieved him from the trust and undertook to indemnify-him against any liability arising out of his relation as such trustee or individually. ’ The three children of Harmin Y. .Storm had vested-estates1 in remainder" in the premises, subject to be defeated by their death before that of their father. (1 R. S. 723, § 13.) And such estates were alienable-, by them. . (Moore v. Littel, 41 N. Y. 66.) In that view" it wouldseem that those children Were, by their request to. have the deed made to Mrs. Storm, and by the instruments executed by them, barred or estopped from asserting any claim or estate in the premises embraced within the deed so made by" the trustee to her." ■ The cases relied upon by the appellant’s counsel to support his contention,.that those children of the beneficiary of the trust had no vested estate in the remainder, do not, in the view taken of them, have any necessary application to the situation hr the present case. In those cases provision was made for something to be done in the future to vest the residuary gift or estate in the persons designated to receive it. In such case the vesting is deemed deferred until that is done. Such was the unreported case of Paget v. Hoadley. In the case at bar the estate in remainder was devised by the will, and-consequently no intent is manifested to suspend the operation of the devise to* the children of the son of -the* testatrix, but she, by the terms of the will, disposed of the entire estate in the premises,' of which they took by the devise the defeasible estate in remainder. There was a further contingency dependent upon the death of all the descendants of Harmin V. Storm before his death. • In-' that event the remainder would' go- to the other son, Peter L. Storm, of-the testatrix, or1 his descendants if he or they survive. This contin-1 [239] gency was quite remote in view of the fact that the three children of Harmin Y. Storm are still living and one of them has two children. And while it may not be probable that he will pass over the graves of all of two or more generations of his descendants into survivorship of them, yet it is possible that he may do so and that such contingency may arise if Peter L. Storm is still living. But as it does not appear by the petition of the appellant that he is living, and as no suggestion is made by counsel on the subject of such a contingency, it may be. assumed that, by the death of Peter L. Storm without leaving descendants, it has ceased to exist. It appeared in the notice of sale of the property in execution of the judgment of foreclosure that, pursuant to an order of the Supreme Court, the title to the property “ described and intended to be.sold is subject to be defeated in whole or in part if the children of Harmin Y. Storm, namely, Samuel G-. Storm, Eleanor L. Houghton and Sarah Y. Yan Brunt, or any of them, should die before their said father, Harmin Y. Storm, leaving a child or children them surviving, and this property is sold subject to such contingency.” By this announcement in the notice and at the sale, it may fairly have been understood by the purchaser that such were the only contingencies upon which the title of the property to be sold could be defeated, wholly or partially, by any adverse claim. And if such were the case the purchaser could not be relieved from his purchase.
There is, however, another question which relates to the standing of Harmin V. Storm in his relation as beneficiary to the trust. It is said that he requested to be made the conveyance which was made by the trustee to his wife, and he joined with his children in the execution of the instruments before mentioned. But, having no estate in the property, he could not assign or dispose of his interest in the income, rents and profits which he as the beneficiary of' the trust was entitled to receive. (1 R. S. 730, § 63; Noyes v. Blakeman, 6 N. Y. 567.) How then could he bar or estop himself from asserting his right to require the execution of the trust in his behalf by any voluntary act on his part ? He was made a party defendant in the foreclosure action, and although the judgment does not appear in the appeal book it may be assumed that by it he was, in terms, barred and foreclosed of all right, claim, lien and equity of redemption in the mortgaged premises. This did not include his relation [240] as .beneficiary of the trust for the reason, as has been observed, that it constituted no estate or interest in the land. The title was hy the will vested in the trustees for .the purposes of the trust. We now see mo satisfactory answer tó the proposition that the beneficiary may, notwithstanding anything appearing in the papers presented on this review, insist upon the execution of the trust created in his behalf by the"will, since, .as against all the persons who, by the terms of the will, might take anything issuing from the premises or any estate therein upon any contingency and are no t denied that' right by their alienation or estoppel, the deed of the trustee to Mrs. Storm will be. deemed as made in contravention of the trust and, therefore, treated as void. The policy of the statute is that the purpose of the creation of a trust for the benefit of- a beneficiary of the rents and profits shall he obseiwed, and that the execution of the trust be not defeated during the prescribed term, even by the person in whose behalf it is. made, so long, as he has no estate nr interest in the trust property or fund. Hor is the income within the limit of amount requisite and suitable for the support'of the beneficiary .subject to the claim of his creditors. The existence of the right nf' the beneficiary of this, trust to require its .execution indicates more than an incumbrance on the property. Its consequence is. title in the trustee during the life of the beneficiary. It does n.ot appear to us that the appellant was advised of this situation or of the trust created by the will in relation to the premises. This fact, seems to .be entitled to more significance than may have been given to it if the sale had not been accompanied by the notice above referred to, purporting to state the condition of the title or the contingencies upon which that taken by the purchaser at the Sale might be defeated. In the view’taken, the appellant may have been misled by this notice. And whether • he may not be subject to prejudicial consequences in respect to the title from the trust created by the will, for the reasons before suggested, if he completes, his purchase by taking a deed, is a question of sufficient moment to entitle him .to rejief.
• • The order should^ therefore, be reversed, and.motion granted. •
All concurred.
Order reversed and motion " granted, ■ with ten dollars costs and disbursements. ■