Hatch, J.:
The action is in ejectment and seeks to recover an undivided one-ninth part of the premises described in the complaint. The rights of the respective parties depend upon the construction to be. given to the will of Mary E. Schuyler, who died seized of the premises March 1, 1880, and the .power and authority of. the trustees appointed thereunder.
After making provision for the management and control of her interest in the business of Miller, Schuyler & Co., and bequests of certain personal property to various persons, the will provides: “All the rest, residue and remainder of my. property and estate, real and ■personal of every nature and kind and wheresoever situated to my husband Garret ■ L. Schuyler and my soil Jacob Miller Schuyler in trust for the execution of this my will, with power to sell and dispose of the same at public ór private sale, at such, times and upon euch terms, as to them, shall seem meet,, and to invest "and reinvest the same and to receive the- rents and profits thereof and to apply, the same as follows : To pay all the rents, profits and income thereof Until the two youngest of my children me surviving .or the survivor of them shall attain '¡the age of twenty-one years to-my husband Garret' L. Schuyler to be used by him towards his own support and maintenance and the support and maintenance and education of my children me surviving as to him may seem' meet free from the payment of his debts; and then when the two youngest of my children, me surviving or the survivor of them shall attain the age of .twenty-one years, or in case neither of said children shall attain the age of twenty-one years, then upon the death of the latest surviving of theni to divide thé said rest, residue and remainder of my estate share and share alike equally among my children me surviving and my said husband Garret L. Schuyler, [267]*267except as hereinafter provided. In case of the death of any of my said children leaving no heir or heirs of his, her or their body, him, her or them surviving, or of my said husband before the distribution of my estate as herein provided for, then the share which would otherwise had he survived have fallen to my said husband and the (shares)
The other provisions of the will do not affect any question involved in the present action. Upon the death of the testator, both trustees qualified and entered upon the execution of their trust. At the time of the death of the testator she had nine children, all of whom survived the trust period provided in the will. After the death of the testator, and on May 12,1888, a judgment was obtained and duly docketed against the son, Jacob Miller Schuyler. Garret L. Schuyler, the husband, died April 20, 1889, leaving him surviving all of the children and J acob Miller Schuyler, the sole surviving trustee. The trust period came to an end by the coming of age' of the youngest child in 1892. On April 1, 1890, Jacob Miller Schuyler,. as sole surviving trustee, sold said property,; and the defendant in this action has succeeded to title by a conveyance from such trustee’s grantee. Snbsequóntly an execution was issued upon the judgment against Jacob Miller Schuyler, which resulted in a sale on the 21st- day of September, 1896, the sheriff assuming to sell all the right, title and interest of the defendant Jacob M. Schuyler, of which he was seized or possessed on the day of the date of the entry of the judgment or at any time afterwards, in the property, the subject of this action. At such sale the plaintiff became the purchaser, and thereafter the sheriff executed and delivered to him a deed in pursuance thereof, and under such deed the plaintiff claims title to a ninth undivided interest in these premises.
We are of opinion that by the provision of the will above quoted a valid trust was created which would continue until the youngest of the two children mentioned therein should come of age unless both should sooner die. It is evident from the language employed that the trust period was not limited to the life of the husband. [268]*268He is given from the trust estate the rents, profits and income for his support and maintenance, and" for the support and maintenance and education of the children. Two purposes are clearly contemplated ; first, the support and maintenance of the husband; and, secondly, the support,, maintenance and education of the children There is no provision in the will for the termination of the trust, except upon the arrival of age of the youngest child, or on the death of both, when the direction is, upon the happening of either contihgency, to distribute and divide the estate among those entitled thereto. That the trust provision was intended to survive the death of the-husband is made manifest by the fact that provision is made respecting the share that would be distributed to him if he survived and its disposition if he died. The fact .that during..the lifetime of the husband he was to receive the rents, issues and profits and make distribution of the same, does not limit or control the. trust provision nor its duration, nor deprive the children during such period of support, maintenance and education from the income ; nor did the right thereto depend upon the life of the husband. The right of the children to such portion as . was necessary for the purposes, mentioned was as absolute as was.the right of the husband, and continued until the termination of the trust period. It is evident, therefore, that the "trust survived the death of the husband.
The trust,, considered merely as a power which was vested" in the trustees, treated as such, did not carry with it the legal title. Upon the death of the testator, the title to the real property became immediately vested in the children of the testator in undivided interest, subject, however,’ to be. divested by. the execution of the power of-sale by the trustees. (Cussack v. Tweedy, 126 N. Y. 81.) As such it became subject to the lien of a judgment recovered against the cestui que trustent, and a sale made thereunder carried with it a legal title to the land so long as the power of sale remained unexecuted. Upon the execution of the power, however, the lien of the. judgment, or a conveyance pursuant to a sale thereunder, will cease and determine, and" the lienor or purchaser will be reler gated to the proceeds of the sale in the execution, of the power, and. a purchaser from the trustee obtains a good title freed of any lien, incumbrance ór cloud. (Sayles v. Best, 140 N. Y. 368; Ackerman v. Gorton, 67 id. 63.)
[269]*269If the will be construed as creating an express trust, as this trust evidently is, then title became vested in the trustees, and the lien of the judgment would not attach. In the view we take of the case, it is not now necessary to determine whether the trustees took an estate or a power.
The surviving trustee exercised the power of sale under the will prior to the termination of the trust period and long before a sale was had under the judgment. It follows, therefore, that as the trust provision was good, if the surviving trustee had the power as such to make the sale, the defendant obtained a good title to the premises, freed of the lien of the judgment, and a sale thereunder conveyed no title or interest of any character.
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Hatch, J.:
The action is in ejectment and seeks to recover an undivided one-ninth part of the premises described in the complaint. The rights of the respective parties depend upon the construction to be. given to the will of Mary E. Schuyler, who died seized of the premises March 1, 1880, and the .power and authority of. the trustees appointed thereunder.
After making provision for the management and control of her interest in the business of Miller, Schuyler & Co., and bequests of certain personal property to various persons, the will provides: “All the rest, residue and remainder of my. property and estate, real and ■personal of every nature and kind and wheresoever situated to my husband Garret ■ L. Schuyler and my soil Jacob Miller Schuyler in trust for the execution of this my will, with power to sell and dispose of the same at public ór private sale, at such, times and upon euch terms, as to them, shall seem meet,, and to invest "and reinvest the same and to receive the- rents and profits thereof and to apply, the same as follows : To pay all the rents, profits and income thereof Until the two youngest of my children me surviving .or the survivor of them shall attain '¡the age of twenty-one years to-my husband Garret' L. Schuyler to be used by him towards his own support and maintenance and the support and maintenance and education of my children me surviving as to him may seem' meet free from the payment of his debts; and then when the two youngest of my children, me surviving or the survivor of them shall attain the age of .twenty-one years, or in case neither of said children shall attain the age of twenty-one years, then upon the death of the latest surviving of theni to divide thé said rest, residue and remainder of my estate share and share alike equally among my children me surviving and my said husband Garret L. Schuyler, [267]*267except as hereinafter provided. In case of the death of any of my said children leaving no heir or heirs of his, her or their body, him, her or them surviving, or of my said husband before the distribution of my estate as herein provided for, then the share which would otherwise had he survived have fallen to my said husband and the (shares)
The other provisions of the will do not affect any question involved in the present action. Upon the death of the testator, both trustees qualified and entered upon the execution of their trust. At the time of the death of the testator she had nine children, all of whom survived the trust period provided in the will. After the death of the testator, and on May 12,1888, a judgment was obtained and duly docketed against the son, Jacob Miller Schuyler. Garret L. Schuyler, the husband, died April 20, 1889, leaving him surviving all of the children and J acob Miller Schuyler, the sole surviving trustee. The trust period came to an end by the coming of age' of the youngest child in 1892. On April 1, 1890, Jacob Miller Schuyler,. as sole surviving trustee, sold said property,; and the defendant in this action has succeeded to title by a conveyance from such trustee’s grantee. Snbsequóntly an execution was issued upon the judgment against Jacob Miller Schuyler, which resulted in a sale on the 21st- day of September, 1896, the sheriff assuming to sell all the right, title and interest of the defendant Jacob M. Schuyler, of which he was seized or possessed on the day of the date of the entry of the judgment or at any time afterwards, in the property, the subject of this action. At such sale the plaintiff became the purchaser, and thereafter the sheriff executed and delivered to him a deed in pursuance thereof, and under such deed the plaintiff claims title to a ninth undivided interest in these premises.
We are of opinion that by the provision of the will above quoted a valid trust was created which would continue until the youngest of the two children mentioned therein should come of age unless both should sooner die. It is evident from the language employed that the trust period was not limited to the life of the husband. [268]*268He is given from the trust estate the rents, profits and income for his support and maintenance, and" for the support and maintenance and education of the children. Two purposes are clearly contemplated ; first, the support and maintenance of the husband; and, secondly, the support,, maintenance and education of the children There is no provision in the will for the termination of the trust, except upon the arrival of age of the youngest child, or on the death of both, when the direction is, upon the happening of either contihgency, to distribute and divide the estate among those entitled thereto. That the trust provision was intended to survive the death of the-husband is made manifest by the fact that provision is made respecting the share that would be distributed to him if he survived and its disposition if he died. The fact .that during..the lifetime of the husband he was to receive the rents, issues and profits and make distribution of the same, does not limit or control the. trust provision nor its duration, nor deprive the children during such period of support, maintenance and education from the income ; nor did the right thereto depend upon the life of the husband. The right of the children to such portion as . was necessary for the purposes, mentioned was as absolute as was.the right of the husband, and continued until the termination of the trust period. It is evident, therefore, that the "trust survived the death of the husband.
The trust,, considered merely as a power which was vested" in the trustees, treated as such, did not carry with it the legal title. Upon the death of the testator, the title to the real property became immediately vested in the children of the testator in undivided interest, subject, however,’ to be. divested by. the execution of the power of-sale by the trustees. (Cussack v. Tweedy, 126 N. Y. 81.) As such it became subject to the lien of a judgment recovered against the cestui que trustent, and a sale made thereunder carried with it a legal title to the land so long as the power of sale remained unexecuted. Upon the execution of the power, however, the lien of the. judgment, or a conveyance pursuant to a sale thereunder, will cease and determine, and" the lienor or purchaser will be reler gated to the proceeds of the sale in the execution, of the power, and. a purchaser from the trustee obtains a good title freed of any lien, incumbrance ór cloud. (Sayles v. Best, 140 N. Y. 368; Ackerman v. Gorton, 67 id. 63.)
[269]*269If the will be construed as creating an express trust, as this trust evidently is, then title became vested in the trustees, and the lien of the judgment would not attach. In the view we take of the case, it is not now necessary to determine whether the trustees took an estate or a power.
The surviving trustee exercised the power of sale under the will prior to the termination of the trust period and long before a sale was had under the judgment. It follows, therefore, that as the trust provision was good, if the surviving trustee had the power as such to make the sale, the defendant obtained a good title to the premises, freed of the lien of the judgment, and a sale thereunder conveyed no title or interest of any character. Whatever right the lienor had was a claim upon the proceeds, and nothing else.
It is a general and well-settled provision of law that the office of trustee and beneficiary may not be united in the same person, as the two interests are incompatible. (Rogers v. Rogers, 111 N. Y. 228; Woodward v. James, 115 id. 346.) It has not yet been decisively determined, however, whether a trust provision, otherwise good, would be defeated by this conjunction of interest. The Supreme Court is vested with power to appoint a person to carry out a good trust provision, where a surviving trustee of an express trust has died, and much reason exists for holding that the court may exercise the power to prevent the failure of a good trust provision, which may be incapable of execution by reason of the conjoined interests of the trustee. (Losey v. Stanley, 147 N. Y. 560.) But however this may be, it is clearly the law that where two or more trustees are appointed to execute a trust, and one or both is under the infirmity of being a beneficiary, neither the trust nor its execution fails, as each may act for the other where disqualification exists, and all can act with respect to that portion of the property in which they have no interest. (Rogers v. Rogers, supra.)
The trust provision, therefore, in this case was valid in its inception and so continued to the end of the period, for, if Jacob Miller Schuyler was under a ban by reason of his interest as beneficiary, the trust continued and the only infirmity, if any, lay in its execution. Unless there be words contained in a will which limit the execution of the power to the joint action of a certain number of trustees the death of one does not defeat the execution of the trust, but [270]*270such power becomes vested in the survivor. Such is the provision of the statute. (3 Birdseye R. S. [2d ed.] 3371, § 45; House v. Raymond, 3 Hun, 44.) It has been held'that a person who was a beneficiary under a will might be appointed to Execute the power where for some reason the trustee named was disqualified. (People ex rel. Collins v. Donohue, 70 Hun, 317.) In Rogers v. Rogers (supra) a like power was' executed through a disqualified trustee, so disqualified by reason of interest. . It is true that in that case the Supreme Court assumed jurisdiction and control of the trust estate and ordered a reference to take proof respecting it, but the act itself was. done by the trustee, and it. was held to be proper and validated the transaction. In Losey v. Stanley (supra) the court said : “We have no doubt that the appointment of the beneficiary as trustee by the court, on the death of resignation of the testamentary trustee^ does not extinguish the trust.” The incompatibility of such a relation would seem to be quite as strong when created by the court as when created by the testator, the only distinction which is apparent being that the court under such circumstances' may supervise the acts of the trustee, but all trustees are subject to the same supervision.
It is clear, we' think, beyond controversy that this trust provision was perfectly valid, both in character and in instruments for its execution. . The trust itself is not. severable; it is one and indivisible. The surviving trustee had clear authority to execute the trust, provision as to eight ninths of the trust property, and in this respect he was subject to no infirmity whatever. 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 equal to his own in the part reserved. As the trust was good in its inception and was indivisible, the partial interest of the trustee, we- think, may not intervene to defeat its execution, and upon the death of his cotrustee the power was properly executed and conveyed good title. The Code provision (§ 2818) seems to cover such a cáse and furnishes authority for the execution of the trust. ' The acts of the trustees in making their prior conveyance and obtaining the reconveyance,, or their other acts, do not affect any question presented by this case, and it is, therefore, not necessary to refer to them.
[271]*271If these views be sound, it follows that the judgment should be affirmed, with costs.
Patterson, Ingraham and Laughlin, JJ., concurred.
Sic.