Ingraham, P. J.
So far as any objection is made to the interest of Mrs. Hall, that was disposed of on the argument, by the offer of a release on her part of any interest in the premises. On the supposition that such an instrument will be executed, I shall not examine that objection, leaving to the purchaser the right to renew his motion if the same is not executed.
The only questions which require examination are, whether the children of John Tonnelle, the son of the testator, are necessary parties ; and whether Francis E. Berger, one of the executors, must unite in the conveyance to give it validity.
The will gave the income of these lots to Margaret for life, and after her death to her issue ; and in case of her death without issue, lots 84 to 88 were to go to his son J ohn, and lots 89 to 93 to his daughter Susan, in fee.
The son J ohn has died, leaving a will disposing of his property to minor children, and these children, it is urged, should be before the court on this application. I think not. John obtained no title to the premises, and could have no interest therein which he could dispose of by will until the death of Margaret without issue ; and as she is still living, no interest could pass under his will to his children, and they would not [336]*336necessarily be parties to this proceeding. They could take no interest under the will, because the father had none that he could devise, and they are not entitled to any now as the heirs at law, because as such no estate could vest in them as the heirs of Margaret, until her death. There was no ground for making them parties to this application.
The other question is whether a good title can be given by the executors who are now acting. Three of the executors named in the will qualified, viz. G. Hall, V. G. Hall and Francis E. Berger. In 1860 Berger left the United States and was removed from the office of executor by the surrogate. He has since, however, returned to the United States, but, as I understand, declines to unite in the conveyance. The statute of 1864, amended by that of 1865, (Laws of 1864, p. 732; Laws of 1865, p. 376,) provides for this application, and authorizes the sale of the property. That statute refers to the property as held in trust by the executors of John Tonnelle under the will, and authorizes the court to direct a conveyance of the same to be executed by the said trustees and others. The fourth section provides that all such conveyances, made as aforesaid, &c. if executed by the trustees as aforesaid, or such persons as may be appointed in his or their place, &c. shall be valid and effectual.
The validity of these statutes, and the power of the court thus to dispose of the interest of infants and of persons not in esse, has been settled by several decisions in the Court of Appeals, (Leggett v. Hunter, 19 N. Y. Rep. 445,) and the right of the executors who qualify, to execute the trusts, to the exclusion of others who do not qualify, is also settled by the above case.
We are brought down, then, to the sole question whether an executor who has been removed by the surrogate from his office as executor is a necessary party to a conveyance of land sold under an act of the legislature, which authorizes a sale to be made by the trustees who held the property under the will at the time of the act. There can be no doubt, if this [337]*337is a trust, but that this court could appoint another trustee in the place of Berger, on a proper application. (Roome v. Phillips, 27 N. Y. Rep. 358, 363.) The will of Tonnelle, senior, gave the executors no authority to sell any of the property, excepting such parts of the real estate as he had previously in his will directed to be sold, and no power of sale was given to the executors in regard to any of these lots. But by a previous provision in the will the testator_ devised all his estate, except some specific legacies and devises, to his executors, upon the trusts thereinafter named. Under this provision, the executors who took upon themselves the execution of the will, became vested with the title, and might sell the real estate. (3 R. S. 5th ed. 197, § 66.)
If at any time an executor becomes incompetent to serve, he may be superseded by the surrogate, and the remaining executors will have, thereafter, the sole administration, under the will. (3 R. S. 5th ed. 157.)
The statute, as to trusts, empowers this court to remove trustees, and to accept their resignations, and while the court is authorized so to do, still it is not obligatory to appoint a new trustee, but it may leave the other trustees to execute the trusts or appoint another,.as may be thought best. (3 R. S. 5th ed. 22.) After the executor had been removed, if such a proceeding had taken place here, there would have been no doubt as to the remaining trustees and executors having full authority to execute the trusts. The court could not remove the executor as such, and the removal of the trustee merely, while he was acting as executor, might not be sufficient to divest him of the estate which was devised to him as executor. (2 Barb. Ch. Rep. 365.) A contrary view seems to have been taken by Brown, J. in the Matter of Crossman, (20 How. Pr. Rep. 350,) where a trustee and executor under a will applied to the court to be relieved from his trust. In that case the Judge says: “The bequest of the will is to all the executors. The effect is to vest the legal title in all the executprs who qualified, with thp right of sur[338]*338vivorship, should either die, become incapable of acting, or be removed by the order of the court having jurisdiction.” And again: “ When one trustee resigns or is discharged from his office, the remaining trustees are vested with the entire estate.”
I am inclined to think the same rule applies to the removal of the executor by the surrogate. His power to act ceases in regard to the will and the administration of the estate. The power he obtains to execute the trust is given to him not by name, but as executor, and-when removed as executor, his relation to the estate ceases.
But I do not think this question necessarily involved in this case. This is not the sale of property authorized by the will and in pursuance of authority conferred thereby, but under and by virtue of the statute. The legislature had power to authorize the sale to be made by any officer of the court, or in such manner as the court should direct. So also they had power to direct who should execute the conveyance, in the statute. This they did do when they directed that the conveyance should be executed by the said trustees. We must then see who are the said trustees named in the act. The statute directs notice to be served on Valentine G. Hall and George Hall, as executors of John Tonnelle, deceased, and states that the lands are held in trust by the executors of said Tonnelle, and then directs the conveyance to be executed by the said trustees. The intent of these provisions is that the conveyance shall be executed by the then acting executors of Tonnelle. Berger had been removed and ceased to be an executor long before the passage of either act. The statute names the other two executors as the persons upon whom notice is to be served as the only acting executors entitled thereto. It designates the executors (then being such) as holding the land in trust, and then directs them—the persons holding the estate—to execute the deed.
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Ingraham, P. J.
So far as any objection is made to the interest of Mrs. Hall, that was disposed of on the argument, by the offer of a release on her part of any interest in the premises. On the supposition that such an instrument will be executed, I shall not examine that objection, leaving to the purchaser the right to renew his motion if the same is not executed.
The only questions which require examination are, whether the children of John Tonnelle, the son of the testator, are necessary parties ; and whether Francis E. Berger, one of the executors, must unite in the conveyance to give it validity.
The will gave the income of these lots to Margaret for life, and after her death to her issue ; and in case of her death without issue, lots 84 to 88 were to go to his son J ohn, and lots 89 to 93 to his daughter Susan, in fee.
The son J ohn has died, leaving a will disposing of his property to minor children, and these children, it is urged, should be before the court on this application. I think not. John obtained no title to the premises, and could have no interest therein which he could dispose of by will until the death of Margaret without issue ; and as she is still living, no interest could pass under his will to his children, and they would not [336]*336necessarily be parties to this proceeding. They could take no interest under the will, because the father had none that he could devise, and they are not entitled to any now as the heirs at law, because as such no estate could vest in them as the heirs of Margaret, until her death. There was no ground for making them parties to this application.
The other question is whether a good title can be given by the executors who are now acting. Three of the executors named in the will qualified, viz. G. Hall, V. G. Hall and Francis E. Berger. In 1860 Berger left the United States and was removed from the office of executor by the surrogate. He has since, however, returned to the United States, but, as I understand, declines to unite in the conveyance. The statute of 1864, amended by that of 1865, (Laws of 1864, p. 732; Laws of 1865, p. 376,) provides for this application, and authorizes the sale of the property. That statute refers to the property as held in trust by the executors of John Tonnelle under the will, and authorizes the court to direct a conveyance of the same to be executed by the said trustees and others. The fourth section provides that all such conveyances, made as aforesaid, &c. if executed by the trustees as aforesaid, or such persons as may be appointed in his or their place, &c. shall be valid and effectual.
The validity of these statutes, and the power of the court thus to dispose of the interest of infants and of persons not in esse, has been settled by several decisions in the Court of Appeals, (Leggett v. Hunter, 19 N. Y. Rep. 445,) and the right of the executors who qualify, to execute the trusts, to the exclusion of others who do not qualify, is also settled by the above case.
We are brought down, then, to the sole question whether an executor who has been removed by the surrogate from his office as executor is a necessary party to a conveyance of land sold under an act of the legislature, which authorizes a sale to be made by the trustees who held the property under the will at the time of the act. There can be no doubt, if this [337]*337is a trust, but that this court could appoint another trustee in the place of Berger, on a proper application. (Roome v. Phillips, 27 N. Y. Rep. 358, 363.) The will of Tonnelle, senior, gave the executors no authority to sell any of the property, excepting such parts of the real estate as he had previously in his will directed to be sold, and no power of sale was given to the executors in regard to any of these lots. But by a previous provision in the will the testator_ devised all his estate, except some specific legacies and devises, to his executors, upon the trusts thereinafter named. Under this provision, the executors who took upon themselves the execution of the will, became vested with the title, and might sell the real estate. (3 R. S. 5th ed. 197, § 66.)
If at any time an executor becomes incompetent to serve, he may be superseded by the surrogate, and the remaining executors will have, thereafter, the sole administration, under the will. (3 R. S. 5th ed. 157.)
The statute, as to trusts, empowers this court to remove trustees, and to accept their resignations, and while the court is authorized so to do, still it is not obligatory to appoint a new trustee, but it may leave the other trustees to execute the trusts or appoint another,.as may be thought best. (3 R. S. 5th ed. 22.) After the executor had been removed, if such a proceeding had taken place here, there would have been no doubt as to the remaining trustees and executors having full authority to execute the trusts. The court could not remove the executor as such, and the removal of the trustee merely, while he was acting as executor, might not be sufficient to divest him of the estate which was devised to him as executor. (2 Barb. Ch. Rep. 365.) A contrary view seems to have been taken by Brown, J. in the Matter of Crossman, (20 How. Pr. Rep. 350,) where a trustee and executor under a will applied to the court to be relieved from his trust. In that case the Judge says: “The bequest of the will is to all the executors. The effect is to vest the legal title in all the executprs who qualified, with thp right of sur[338]*338vivorship, should either die, become incapable of acting, or be removed by the order of the court having jurisdiction.” And again: “ When one trustee resigns or is discharged from his office, the remaining trustees are vested with the entire estate.”
I am inclined to think the same rule applies to the removal of the executor by the surrogate. His power to act ceases in regard to the will and the administration of the estate. The power he obtains to execute the trust is given to him not by name, but as executor, and-when removed as executor, his relation to the estate ceases.
But I do not think this question necessarily involved in this case. This is not the sale of property authorized by the will and in pursuance of authority conferred thereby, but under and by virtue of the statute. The legislature had power to authorize the sale to be made by any officer of the court, or in such manner as the court should direct. So also they had power to direct who should execute the conveyance, in the statute. This they did do when they directed that the conveyance should be executed by the said trustees. We must then see who are the said trustees named in the act. The statute directs notice to be served on Valentine G. Hall and George Hall, as executors of John Tonnelle, deceased, and states that the lands are held in trust by the executors of said Tonnelle, and then directs the conveyance to be executed by the said trustees. The intent of these provisions is that the conveyance shall be executed by the then acting executors of Tonnelle. Berger had been removed and ceased to be an executor long before the passage of either act. The statute names the other two executors as the persons upon whom notice is to be served as the only acting executors entitled thereto. It designates the executors (then being such) as holding the land in trust, and then directs them—the persons holding the estate—to execute the deed.
My conclusion is, that both from the removal of Berger as executor, before the passage of the statutes, and from the [339]*339provisions of those statutes in which the other executors, alone, are named as such and as holding the trust, the intent of the legislature was that the deeds should be executed by the acting executors, Valentine and George Hall; and that it is not necessary that Berger should join in the conveyance.
The motion to relieve the purchaser from his purchase should therefore be denied.
Geo. G. Barnard, J.
There - is no question made that the legislature had not the power to pass the acts of 1864 and 1865, under which this petition was presented to the court. The power has for many years been exercised, in like cases, and is sustained by the highest authority. (Leggett v. Hunter, 19 N. Y. Rep. 463.) Berger, by reason of his removal from the state, was removed as executor, by the surrogate of Hew York. He was trustee because he was an executor, and when he ceased to be executor he ceased to be trustee. But assuming that he was still a trustee, it was competent for the legislature to declare that a deed executed by two of the three trustees should be sufficient to convey the entire estate. This the act does, in terms. It provides for notice to be served on Valentine G. Hall and George Hall, as executors of the deceased, John Tonnelle, and provides that a conveyance by them shall be sufficient “to vest in the purchaser a fee simple absolute.” (Laws of 1864, p. 732. Laws of 1865, p. 376.)
Eloise Tonnelle, an heir of John Tonnelle, is an infant. The act directed a copy of the petition to be served on her general guardian. This notice was served on her mother, her father being dead, and she having no testamentary guardian, and no guardian having been appointed by the surrogate. She resided with her mother, who had the custody and control of the said infant, Eloise Tonnelle, and attended to her education and maintenance.
The mother is by statute the guardian in socage of the infant. (Revised Statutes, chap. 1, title 1, part 2, art, 1.) [340]*340This gave the mother “ a right to the custody of the infant’s land and body.” (2 Black. Com. 88.) The service was properly made upon the mother; but this question can not be; made by the purchaser. The court decreed that the service was proper, and granted the sale. A review can not be had, except by a direct- appeal. It cannot be questioned collaterally.
[New York General Term,
November 6, 1865.
The order refusing to release the purchaser from his bid should be affirmed with costs.
Leonard, J. concurred.
Order affirmed.
Ingraham, Leonard and Geo. G. Barnard, Justices.]