Burr, J.:
The appellants contend that the deed executed by Maria Wyckoff to Edward E. Linton under the power of sale contained in the will of Henry L. Wyckoff was void because as Mrs. Wyckoff was, the sole surviving trustee of the trust created by said will and also the sole beneficiary thereof, she was incompetent to make such conveyance. (Haendle v. Stewart, 84 App. Div. 274;. Woodward v. James, 115 N. Y. 346; Greene v. Greene, 125 id. 506; Losey v. Stanley, 147 id. 560; Rogers v. Rogers, 111 id. 228.) This contention is based upon a misapprehension of the character and extent of the trust estate and of the estate in remainder, and also of the scope and purpose of the power of sale.
The will of Henry L. Wyckoff gave to his wife Maria the use and income of all his real and personal property to be paid to her bv his executors so. long as she remained his widow. There was thereby created a valid trust under the Statute of Uses and Trusts in force when this will took effect. (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 728], § 55, subd. 3, as amd. by Laws of 1830, chap. 320, § 10; Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166.) The testator’s son, Abraham Vanderveer Wyckoff, took a vested estate in the remainder subject to be defeated by his death during the lifetime of his mother. (Moore v. Littel, 41 N. Y. 66;. Matter of Tompkins, 154 id. 634; Stringer v. Young, 191 id. 157.) When the testator died his son was then living and there was an absolute gift to him as soon as the precedent estate terminated. His death before his mother leaving issue was a contingency upon which such remainder might vest in his issue, but it was not an event upon which the vesting in him depended. As said by Judge G-ray in the Stringer case, the contingency (that is, his death within the period named) “ was a possible event * * * which should operate to divest those interests. It was riot a gift limited to take effect upon an uncertain event; it was a gift, which- the uncertain event might chance to defeat.” The case of People's Trust Co. v. Flynn (188 N. Y. 385), relied upon by the appellants in [143]*143support of the contention that this was a contingent and not a vested remainder, was decided, as is true with all other cases involving the construction of wills, upon the facts peculiar to that case. The devise in remainder was among others to the issue of testator’s daughters, Mary and Regina. At the time of his death his daughters had no issue, and the contingency upon which the vesting of that estate depended was the subsequent birth of such issue. The provision of the Statute of Uses and Trusts (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 729], § 60) that every express trust valid as such in its creation, except as "herein otherwise provided, shall vest the whole estate in the trustee in law and equity, subject only to the execution of the trust, has been construed to mean not every possible interest in the land, but the entire estate necessary to make the trust effective. (Crooke v. County of Kings, 97 N. Y. 421 ; Losey v. Stanley, 147 id. 560.) As Judge Earl says in the Groohe case (p. 446): “ This does not mean that the entire absolute fee shall be vested in the trustee, but simply so much of the estate as is put in trust and as is necessary to feed the trust. The .remainder of the estate may remain in the creator of the trust, or may be disposed of by him in some other way or to some other person. The trustee takes a legal estate commensurate with the equitable estate, the legal estate being essential to uphold the trust. It is the whole trust estate that "is vested in the trustee. An estate may be so vested subject to remainders and other future estates, and subject to the execution of a power of sale on the part of any person which may terminate the trust.” Again, Chief Judge Andrews says in the Losey case: “ The will created two distinct legal estates in the devised property, viz., an estate in the trustee for the life of the beneficiary, with the right of possession "and to receive the rents and profits during the continuance of the trust, and an estate in remainder which became vested on the birth of children as before stated. The trustee had no power over the estate in remainder except such as may have been given him by the will. He could not sell or incumber it or in any way by his own act alter or affect the interests of the remaindermen unless authorized by the will. The ¡u’ovision of the Statute of Uses and Trusts, * * * declaring that every valid express trust shall vest the whole estate in the trustees, is by settled construction limited tb the trust estate, and hag [144]*144no application to future legal estates in lands covered by the trust, to take effect in possession on the termination of flie trust.” In the r case at bar, both the trust estate and the estate in remainder were subject to a power in the will to grant, sell, convey, mortgage, lease or exchange the land for the purpose of paying debts and the legacies hereinbefore specified. As this power was declared to be “ full, absolute and complete,” and as there were no- legacies, strictly speaking, mentioned in the will, in order to carry out testator’s .intent, this clause may fairly be made to refer to the provision of his will relating to the payment of. income to his widow, and to authorize the sale of unimproved and unproductive property so that the same should become income-producing to the widow after the termination of the precedent life estate, and that the estate in remainder might be relieved, if need be, from loss which might result through carrying property of such character. This power was a general power in trust. (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 734], § 94.) Although the testator named two executors in Ms will, he expressly provided that this power might be executed by the survivor of them if one should die. Whether, if the power of sale had been limited strictly to the purposes of the trust and affected only the trust estate, the widow, who was tlie beneficiary of the trust, could have executed this power or not, it seems.clear that when the power is given for other purposes and other persons are benefited by.the execution of it, the fact that she also may derive a.bénefit from it will not deprive her of the right to execute the same. (Rankine v. Metzger, 69 App. Div. 264.) The authority to sell was to sell the entire estate, not only so much as was vested in the trustee and was necessary to “feed the trust,” but also the estate in remainder in which the trustee had no interest. As Mr. Justice Hatch says, in the case last cited : “ The authority was to sell the whole interest. The trustee could no more save out.his own share from passing under the execution of the power than he could the interest of any other child, and if he sought to make severance he could not do it, as the interest of each would be ecpial to his own in the part reserved.”- In this case the power- to sell was given to the executor as well as the trustee. The payment of debts was primarily the duty of the executor. The deed recites that the grantor is executor as well as trustee, and the covenants in. the deed aré on her part as executor and not as trustee. [145]*145Further than that, as bearing upon the capacity in which this deed was executed by Maria Wyckoff, it is important to observe that as trustee she at the most had only an estate in title and not in possession. The possession was in her deceased husband’s mother, who had a life estate therein.
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Burr, J.:
The appellants contend that the deed executed by Maria Wyckoff to Edward E. Linton under the power of sale contained in the will of Henry L. Wyckoff was void because as Mrs. Wyckoff was, the sole surviving trustee of the trust created by said will and also the sole beneficiary thereof, she was incompetent to make such conveyance. (Haendle v. Stewart, 84 App. Div. 274;. Woodward v. James, 115 N. Y. 346; Greene v. Greene, 125 id. 506; Losey v. Stanley, 147 id. 560; Rogers v. Rogers, 111 id. 228.) This contention is based upon a misapprehension of the character and extent of the trust estate and of the estate in remainder, and also of the scope and purpose of the power of sale.
The will of Henry L. Wyckoff gave to his wife Maria the use and income of all his real and personal property to be paid to her bv his executors so. long as she remained his widow. There was thereby created a valid trust under the Statute of Uses and Trusts in force when this will took effect. (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 728], § 55, subd. 3, as amd. by Laws of 1830, chap. 320, § 10; Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166.) The testator’s son, Abraham Vanderveer Wyckoff, took a vested estate in the remainder subject to be defeated by his death during the lifetime of his mother. (Moore v. Littel, 41 N. Y. 66;. Matter of Tompkins, 154 id. 634; Stringer v. Young, 191 id. 157.) When the testator died his son was then living and there was an absolute gift to him as soon as the precedent estate terminated. His death before his mother leaving issue was a contingency upon which such remainder might vest in his issue, but it was not an event upon which the vesting in him depended. As said by Judge G-ray in the Stringer case, the contingency (that is, his death within the period named) “ was a possible event * * * which should operate to divest those interests. It was riot a gift limited to take effect upon an uncertain event; it was a gift, which- the uncertain event might chance to defeat.” The case of People's Trust Co. v. Flynn (188 N. Y. 385), relied upon by the appellants in [143]*143support of the contention that this was a contingent and not a vested remainder, was decided, as is true with all other cases involving the construction of wills, upon the facts peculiar to that case. The devise in remainder was among others to the issue of testator’s daughters, Mary and Regina. At the time of his death his daughters had no issue, and the contingency upon which the vesting of that estate depended was the subsequent birth of such issue. The provision of the Statute of Uses and Trusts (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 729], § 60) that every express trust valid as such in its creation, except as "herein otherwise provided, shall vest the whole estate in the trustee in law and equity, subject only to the execution of the trust, has been construed to mean not every possible interest in the land, but the entire estate necessary to make the trust effective. (Crooke v. County of Kings, 97 N. Y. 421 ; Losey v. Stanley, 147 id. 560.) As Judge Earl says in the Groohe case (p. 446): “ This does not mean that the entire absolute fee shall be vested in the trustee, but simply so much of the estate as is put in trust and as is necessary to feed the trust. The .remainder of the estate may remain in the creator of the trust, or may be disposed of by him in some other way or to some other person. The trustee takes a legal estate commensurate with the equitable estate, the legal estate being essential to uphold the trust. It is the whole trust estate that "is vested in the trustee. An estate may be so vested subject to remainders and other future estates, and subject to the execution of a power of sale on the part of any person which may terminate the trust.” Again, Chief Judge Andrews says in the Losey case: “ The will created two distinct legal estates in the devised property, viz., an estate in the trustee for the life of the beneficiary, with the right of possession "and to receive the rents and profits during the continuance of the trust, and an estate in remainder which became vested on the birth of children as before stated. The trustee had no power over the estate in remainder except such as may have been given him by the will. He could not sell or incumber it or in any way by his own act alter or affect the interests of the remaindermen unless authorized by the will. The ¡u’ovision of the Statute of Uses and Trusts, * * * declaring that every valid express trust shall vest the whole estate in the trustees, is by settled construction limited tb the trust estate, and hag [144]*144no application to future legal estates in lands covered by the trust, to take effect in possession on the termination of flie trust.” In the r case at bar, both the trust estate and the estate in remainder were subject to a power in the will to grant, sell, convey, mortgage, lease or exchange the land for the purpose of paying debts and the legacies hereinbefore specified. As this power was declared to be “ full, absolute and complete,” and as there were no- legacies, strictly speaking, mentioned in the will, in order to carry out testator’s .intent, this clause may fairly be made to refer to the provision of his will relating to the payment of. income to his widow, and to authorize the sale of unimproved and unproductive property so that the same should become income-producing to the widow after the termination of the precedent life estate, and that the estate in remainder might be relieved, if need be, from loss which might result through carrying property of such character. This power was a general power in trust. (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 734], § 94.) Although the testator named two executors in Ms will, he expressly provided that this power might be executed by the survivor of them if one should die. Whether, if the power of sale had been limited strictly to the purposes of the trust and affected only the trust estate, the widow, who was tlie beneficiary of the trust, could have executed this power or not, it seems.clear that when the power is given for other purposes and other persons are benefited by.the execution of it, the fact that she also may derive a.bénefit from it will not deprive her of the right to execute the same. (Rankine v. Metzger, 69 App. Div. 264.) The authority to sell was to sell the entire estate, not only so much as was vested in the trustee and was necessary to “feed the trust,” but also the estate in remainder in which the trustee had no interest. As Mr. Justice Hatch says, in the case last cited : “ The authority was to sell the whole interest. The trustee could no more save out.his own share from passing under the execution of the power than he could the interest of any other child, and if he sought to make severance he could not do it, as the interest of each would be ecpial to his own in the part reserved.”- In this case the power- to sell was given to the executor as well as the trustee. The payment of debts was primarily the duty of the executor. The deed recites that the grantor is executor as well as trustee, and the covenants in. the deed aré on her part as executor and not as trustee. [145]*145Further than that, as bearing upon the capacity in which this deed was executed by Maria Wyckoff, it is important to observe that as trustee she at the most had only an estate in title and not in possession. The possession was in her deceased husband’s mother, who had a life estate therein. Up to the time of the sale she had no active duties as trustee with regard to this land, for the rents and profits thereof, if there had been any, did not come to her, but went to another. , It is true that after the sale a fund was in existence which was a trust fund of which she was entitled to the income, but this was not the direct result of the sale and conveyance by her, but of the release by the life tenant of her precedent estate in the land. But for. this she would not have been entitled to receive any portion either of the principal or income of the proceeds of the sale. The power to sell being, therefore, given to the executor for valid purposes of administration, as well as to the trustee, and the estate conveyed being not only the estate held by the trustee and which was necessary to “ feed the trust,” but the estate in remainder over which the trustee, as such, had no power or authority, the necessity for the sale or the expediency of the execution of the power, or the application of the proceeds of the sale need not be inquired into by the purchaser at such sale. (R. S. pt. 2, chap. 1, tit. 2 [1 R. S. 730], § 66; Lindo v. Murray, 91 Hun, 335.) It does not appear that at the time of the sale the purchaser knew for what purpose the power to sell was being exercised. In respect to its scope, the power under this will differs essentially from the power conferred in the will under consideration in Haendle v. Stewart, (supra), which is principally relied upon by the appellants. In that case the declared purpose of the trust was “To collect, receive and ]jay over the income thereof to my wife, Anna Fredericka, during her. natural life, for the support and maintenance of herself and our children, with the right and power to use so much of the principal thereof as my said executors may from time to time deem necessary and proper in their discretion, for the purposes of said trust.” And the power of sale was in express words limited to the “ purposes of the trust,” and the decision was expressly put upon the ground that an “ attempted execution of the power by the plaintiff, not qualified to execute the trust, was not an execution of the [146]*146power given to the trustees to he exercised for the purposes of the trust.” The complaint contains sufficient allegations to sustain the action as one to determine claims to real property (Code Civ. Proc. §§ 1638, 1639), and the findings and judgment are in accordance with the statutory requirements respecting the same. (Id. § 1645.) The fact that the complaint contained other allegations not necessary to such a form of action, and that the prayer for relief is in part inappropriate, does not prevent the court upon the trial from awarding such judgment as the just rights of the parties demand.
The judgment appealed from should he affirmed, with costs.
Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred
Judgment affirmed, with costs.