By the Court, S. B. Strong, P. J.
The deeds in these cases were executed by the acting (and alleged to be the legitimate) [98]*98trustee; the person entitled to receive and use, the income, or rents 'and profits, of the land intended to be conveyed during her life, and her husband; and the special guardian of their present children who were at the time seised of, or entitled to, the remainder. No objection has been raised to the form of the deeds, or to the mode of the antecedent proceedings, so that the grantees would confessedly take whatever estate it was in the power of the grantees, any or either of them, to convey. If that was a fee simple absolute, then the defendants must take their deeds and complete their several purchases ; otherwise not.
It was decided by the court of appeals, in Leggett v. Perkins,, (2 Comst. 297,) that the devises in the will of Gerardus Post to, or in favor of, his daughters, Mrs. Leggett and Mrs. Barber, during their respective lives, were valid, and vested the legal estate in the trustees. The objection to the devises was that the trustees were directed to pay over to (and not, in the words of the revised statutes, apply to the use of,) the daughters the rents, interest or net income of the lands devised, or subsequently to be purchased ; and it ivas also supposed that as there was no direct, devise of the real estate to the trustees they did not take the legal fee. The court decided that there was no substantial difference between the direction to pay over the income, and the statutory requisition to apply it, and that the authority to the trustees to receive and pay over the rents or net income gave to them, by implication, the legal estate, within the principle established in the case of Brewster v. Striker, (2 Comst. 19.) I was a member of that court when Leggett v. Perkins was decided, and concurred with Judges Bronson and •Jewett, against the opinion of the majority. And I have entertained serious doubts as to the accuracy of the decision in Brewster v. Striker. There are no very cogent reasons, however, (such as were alluded to by Judge Harris in Baker v. Lorillard, 4 Comst. 261,) for overruling those decisions in the court where they were rendered, and they must be considered— especially by inferior tribunals—as the settled law.
It was contended by the counsel for the defendants that the power to sell the testator’s lands was given to the executors, in [99]*99that capacity, and not as general trustees, and that therefore it could not be transferred to another by an order of a court of equity. It is true that when executors take a power to sell real estate, in order that the proceeds may be appropriated by them in the discharge of the duties ordinarily devolved upon them, such as to pay debts, or to make any appropriation in such a manner that the proceeds might be considered as assets, there might be an incongruity in the substitution of others by a tribunal not intrusted with jurisdiction over the settlement of the estates of deceased persons. But in this instance, the testator, in another clause of his will, appoints the persons whom he makes executors, “ trustees to the estates” of his two daughters, and authorizes them to take care of, manage and improve the same, and to pay over to the daughters the net residue thereof; and he directs the executors, after the primary sale of his real estate, to put out and invest the shares of the proceeds belonging to his daughters, with authority in the execution of their trust, to invest such proceeds, or some part thereof, in the purchase of real estate for the use and benefit of his daughters ; and in further execution of their trust, to sell the same, or any such estate so purchased, with the allowance of the court of chancery first had and obtained for that purpose. These powers are conferred, and the implied estate devolved, upon the donees, not as executors but as ordinary trustees, such as are designated in our statutes relative to uses and trusts. The allusion to them as executors is merely a convenient way of designating the persons, and is not designed to mark the capacity in which they are to take. Besides, the provision that the sales of the real estate of the daughters must be allowed by a court of equity, is a clear indication that they are not to act in a capacity which might subject them to the jurisdiction of a different tribunal. I have admitted, in effect, that a court of equity cannot substitute new executors, as such, for those named by the testator. But when their duties as executors have terminated, and they have become simply trustees, it seems to me that the power conferred by the revised statutes, (1 R. S. 730, §§ 69, 71,) upon courts of equity, to compel the resignation of a trustee, and to appoint another [100]*100in his place, is applicable and may be exercised. The statute (§ 69) uses the terms K any trustee,” and the expressions are broad enough to include all who are intrusted with the management ■ of real estate in 'that capacity. The provisions of the sections which I have quoted are also made applicable to the grantees of powers in trust. (I 102.)
In the case under consideration the sole acting, and so far as is indicated by the papers, the then sole surviving, trustee (Mayor Woodhull) resigned his office, and his resignation was accepted by this court, and the plaintiff, William H. Leggett, was appointed in his place, and of course with the same powers. The proceedings, it is true, were not very formal, but they were substantially effective.
The lands in question had been confessedly legally sold by Woodhull, under the general power given in the ninth clause of the will, “ to sell the testator’s estate.” He had secured the purchase money by a mortgage on the real estate sold, pursuant to a direction in the fifth clause, and had, Under the same clause, subsequently purchased such real estate, in part for the benefit of the testator’s daughters, There had not been any division of the proceeds when the real estate was originally sold, nor was the subsequent purchase solely for the daughters,"but there was afterwards a partition between the testator’s children, to which the acting trustee was a party. And after that, and until his resignation, he held the lands in question as their shares, and as I consider, under the fifth clause of the will. If so, he, before such resignation, and the plaintiff William H. Leggett afterwards, had the power to sell such lands, with the approbation of this court. The sales were made by such substituted trustee with the required approbation j and it seems to me that a deed from him alone would have conveyed a good title to the land. If so, the facts that it had been sanctioned by an act of the legislature, and that others had joined with him in the conveyance, would not, surely, vitiate or impair the title.
If the conveyances by the ladies entitled to the income of the lands in question, and their husbands, would be simply or at all conveyances of their income, and without express legislative [101]*101sanction, they would have been void under the 63d section of the revised statutes relative to uses and trusts. But it was competent for the legislature to relieve them from such restriction, at any rate where there was no invasion of the vested rights of others; and that was done by the act entitled “ An act relative to the lands held in trust by William H. Leggett for the benefit of Susan Post Legett and her descendants,” and a similar act relative to the lands held for Mrs.
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By the Court, S. B. Strong, P. J.
The deeds in these cases were executed by the acting (and alleged to be the legitimate) [98]*98trustee; the person entitled to receive and use, the income, or rents 'and profits, of the land intended to be conveyed during her life, and her husband; and the special guardian of their present children who were at the time seised of, or entitled to, the remainder. No objection has been raised to the form of the deeds, or to the mode of the antecedent proceedings, so that the grantees would confessedly take whatever estate it was in the power of the grantees, any or either of them, to convey. If that was a fee simple absolute, then the defendants must take their deeds and complete their several purchases ; otherwise not.
It was decided by the court of appeals, in Leggett v. Perkins,, (2 Comst. 297,) that the devises in the will of Gerardus Post to, or in favor of, his daughters, Mrs. Leggett and Mrs. Barber, during their respective lives, were valid, and vested the legal estate in the trustees. The objection to the devises was that the trustees were directed to pay over to (and not, in the words of the revised statutes, apply to the use of,) the daughters the rents, interest or net income of the lands devised, or subsequently to be purchased ; and it ivas also supposed that as there was no direct, devise of the real estate to the trustees they did not take the legal fee. The court decided that there was no substantial difference between the direction to pay over the income, and the statutory requisition to apply it, and that the authority to the trustees to receive and pay over the rents or net income gave to them, by implication, the legal estate, within the principle established in the case of Brewster v. Striker, (2 Comst. 19.) I was a member of that court when Leggett v. Perkins was decided, and concurred with Judges Bronson and •Jewett, against the opinion of the majority. And I have entertained serious doubts as to the accuracy of the decision in Brewster v. Striker. There are no very cogent reasons, however, (such as were alluded to by Judge Harris in Baker v. Lorillard, 4 Comst. 261,) for overruling those decisions in the court where they were rendered, and they must be considered— especially by inferior tribunals—as the settled law.
It was contended by the counsel for the defendants that the power to sell the testator’s lands was given to the executors, in [99]*99that capacity, and not as general trustees, and that therefore it could not be transferred to another by an order of a court of equity. It is true that when executors take a power to sell real estate, in order that the proceeds may be appropriated by them in the discharge of the duties ordinarily devolved upon them, such as to pay debts, or to make any appropriation in such a manner that the proceeds might be considered as assets, there might be an incongruity in the substitution of others by a tribunal not intrusted with jurisdiction over the settlement of the estates of deceased persons. But in this instance, the testator, in another clause of his will, appoints the persons whom he makes executors, “ trustees to the estates” of his two daughters, and authorizes them to take care of, manage and improve the same, and to pay over to the daughters the net residue thereof; and he directs the executors, after the primary sale of his real estate, to put out and invest the shares of the proceeds belonging to his daughters, with authority in the execution of their trust, to invest such proceeds, or some part thereof, in the purchase of real estate for the use and benefit of his daughters ; and in further execution of their trust, to sell the same, or any such estate so purchased, with the allowance of the court of chancery first had and obtained for that purpose. These powers are conferred, and the implied estate devolved, upon the donees, not as executors but as ordinary trustees, such as are designated in our statutes relative to uses and trusts. The allusion to them as executors is merely a convenient way of designating the persons, and is not designed to mark the capacity in which they are to take. Besides, the provision that the sales of the real estate of the daughters must be allowed by a court of equity, is a clear indication that they are not to act in a capacity which might subject them to the jurisdiction of a different tribunal. I have admitted, in effect, that a court of equity cannot substitute new executors, as such, for those named by the testator. But when their duties as executors have terminated, and they have become simply trustees, it seems to me that the power conferred by the revised statutes, (1 R. S. 730, §§ 69, 71,) upon courts of equity, to compel the resignation of a trustee, and to appoint another [100]*100in his place, is applicable and may be exercised. The statute (§ 69) uses the terms K any trustee,” and the expressions are broad enough to include all who are intrusted with the management ■ of real estate in 'that capacity. The provisions of the sections which I have quoted are also made applicable to the grantees of powers in trust. (I 102.)
In the case under consideration the sole acting, and so far as is indicated by the papers, the then sole surviving, trustee (Mayor Woodhull) resigned his office, and his resignation was accepted by this court, and the plaintiff, William H. Leggett, was appointed in his place, and of course with the same powers. The proceedings, it is true, were not very formal, but they were substantially effective.
The lands in question had been confessedly legally sold by Woodhull, under the general power given in the ninth clause of the will, “ to sell the testator’s estate.” He had secured the purchase money by a mortgage on the real estate sold, pursuant to a direction in the fifth clause, and had, Under the same clause, subsequently purchased such real estate, in part for the benefit of the testator’s daughters, There had not been any division of the proceeds when the real estate was originally sold, nor was the subsequent purchase solely for the daughters,"but there was afterwards a partition between the testator’s children, to which the acting trustee was a party. And after that, and until his resignation, he held the lands in question as their shares, and as I consider, under the fifth clause of the will. If so, he, before such resignation, and the plaintiff William H. Leggett afterwards, had the power to sell such lands, with the approbation of this court. The sales were made by such substituted trustee with the required approbation j and it seems to me that a deed from him alone would have conveyed a good title to the land. If so, the facts that it had been sanctioned by an act of the legislature, and that others had joined with him in the conveyance, would not, surely, vitiate or impair the title.
If the conveyances by the ladies entitled to the income of the lands in question, and their husbands, would be simply or at all conveyances of their income, and without express legislative [101]*101sanction, they would have been void under the 63d section of the revised statutes relative to uses and trusts. But it was competent for the legislature to relieve them from such restriction, at any rate where there was no invasion of the vested rights of others; and that was done by the act entitled “ An act relative to the lands held in trust by William H. Leggett for the benefit of Susan Post Legett and her descendants,” and a similar act relative to the lands held for Mrs. Barber, and her descendants, passed June 21, 1853. In the 4th section it was provided, expressly, that conveyances under it, executed by-the trustee, by the ladies and their husbands, and by the special guardian of their infant children, should vest in the purchasers a fee simple absolute against all persons having any claim to, or interest in, the premises, under the will of Gerardus Post. That of course sanctioned the proposed conveyances by Mrs. Post and Mrs. Barber and their husbands, if any such conveyances were necessary to complete the title of the purchasers.
Then as to the children of Mrs. Post and Mrs. Barber. As those in esse were minors, the legislature had confessedly the power to authorize the conversion of their real estate into personal property, if satisfied, (as it no doubt was,) that such change would be for their benefit. Those children were, at the time when the act was passed, seised of the entire remainder. That remainder, it is true, was subject to open in favor of after-born children of their mothers, but as to those children there was not, of course, any vested interest. All that could be claimed in their behalf was that they should receive their portion of the proceeds, and of that they would not be deprived by the act, or the procedure under it. I am inclined to agree with Judge Harris, who gave the leading opinion in Baker v. Lorillard, (4 Comst. 266, 267,) that children in being who have a vested remainder in fee subject to open to let in after born children of the same parent, may be regarded as holding the legal estate not only for their own benefit but as trustees of such after-born children; and that a sale may carry the interest of the after-born children as well as of those in being at the time. Especially is this true if the sale is expressly [102]*102sanctioned by an act of the legislature providing in effect that it must be made manifest to the court ordering and confirming the sale, that it would be expedient, and calculated to promote the interests of the children, whether then in being or not, and that a conveyance under the act would carry the fee against the after-born, as well as the existing, children. „ Under this legislation, no injustice can be done to the after-born children, if any there should be; and I cannot see why the proceedings under it will not pass their contingent estate. Uo question was made in this case but that the special guardian of the existing children was duly appointed; and there can be no doubt but that a conveyance to which he is a party will effectually pass their estate, if indeed that would not pass by a deed from the trustee.
[Orange General Term,
July 14, 1857.
As the defendants would, in my opinion, acquire a valid title to the premises purchased by them, under the proposed conveyances, they should be required to complete their respective purchases.
ifo costs should be awarded.
S. B. Strong, Birdseye and Emott, Justices.]