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In the Matter of the Application of Sarah Asch, etc.

premises in question. No objection seems to be taken to the form of this deed or to its provisions or its covenants.

It must be borne in mind that the case presented here is not that of a casual purchaser of real property at a public judicial sale, but that of a person seeking to be relieved from a specific contract deliberately made under his hand and seal, the terms and conditions of which are all definitely stated in that contract. Under its terms, as we have seen, the plaintiff was entitled to a conveyance which would vest in him the whole fee. That fee consists of the combined life estate, trust estate (whatever it may be), and the legal interests in remainder. The appellant elected to have the life tenant join in the conveyance by purchasing that life interest under the contract. He also agreed to take the vested interests in remainder of the adult child of the testator. The question then remains as to whether he would acquire under that deed the trust estate and the infants' legal estates in remainder. That such infants' legal estates are contingent remainders in fee does not prevent the court exercising its jurisdiction to direct. a sale of such interests (Dodge v. Stevens, 105 N. Y. 585). It is contended, however, that a sale of the infants' interests was prohibited by section 2357 of the Code of Civil Procedure, which provides that the real property of an infant, lunatic, idiot or habitual drunkard "shall not be sold, leased or mortgaged as prescribed in this title, contrary to the provisions of a will by which it was devised, or of a conveyance or other instrument by which it was transferred to an infant or incompetent person." It is further contended that the property could not be sold because of the inalienable character of the trust estate.

The provision of the testator's will does not expressly prohibit the sale of the premises in question here, nor are we able to see that a present sale of the property would defeat the testator's design. The direction that after the death of the widow, the real estate shall be kept "in trust for the benefit of our children then living," is to be construed as meaning

In the Matter of the Application of Sarah Asch, etc.

that it shall be held in trust. We do not find in the clause of the will under consideration any fair implication that a sale of the property would be contrary to the provisions of the will. The only implication of a prohibition of a sale of the infants' interests that can be drawn must be from the interposition of a trust estate during their minority. But a trust estate (in a proper case) may also be sold by direction of the court, and where that may be done it cannot be said that the existence of the trust gives rise to an implication drawn from a will that a sale of the property is prohibited by the will. If there had been a sale of the trust estate separately, made under direction of the court, as is permitted by statute, could it be said in a subsequent separate proceeding under the Code for a sale of the infants' remainders, that such a sale would be in violation of a prohibition contained in the will? Here the sales of the trust estate and of the interests in remainder are concurrent, but that does not essentially change the situation.

We do not agree with the court at Special Term that the trust estate could not be presently sold, for a reason which will be hereinafter adverted to. While a voluntary sale of that trust estate would not be permitted, the Statute of Uses and Trusts now authorizes it to be sold in a proper case. O'Donohue v. Boies (159 N. Y. 87) is cited in support of the proposition that a sale ordered by the court of real property in contravention of a trust is forbidden by the statute and void. In that case we are referred to the words of Judge O'Brien in the opinion of the court that " the plain purpose of the enactment was to make these trust estates and trust interests indestructible and absolutely inalienable during the existence of the trust, and if they could be rendered alienable by the order of the court the whole scheme of the statute would be greatly impaired and its purpose thwarted." But an examination of that case will show that there was an express prohibition upon a sale during the continuance of the trust, and the sale was made in 1870, long before the Statute of

In the Matter of the Application of Sarah Asch, etc.

Uses and Trusts was so amended as to permit the sale of trust estates by order of the court. In the Statute of Uses and Trusts, as it now reads (Laws 1896, chap. 547, sec. 85), it is provided that "if the trust is expressed in the instrument creating the estate, every sale, conveyance or other act of the trustee in contravention of the trust, except as provided in this section, shall be absolutely void. The Supreme Court may, by order, on such terms and conditions as seem just and proper, authorize any such trustee to mortgage or sell such real property, or any part thereof, whenever it appears to the satisfaction of the court that it is for the best interest of such estate or that it is necessary and for the benefit of the estate to raise funds for the purpose of preserving and improving it; and whenever the interest of the trust estate in any real property is an undivided part or share thereof, the same may be sold, if it shall appear to the court to be for the best interest of such estate." That provision is substantially the same as the amendment of 1866 of section 65 of the Statute of Uses and Trusts under the Revised Statutes (Laws of 1886, chap. 237), except that part relating to sale where the trust is of an undivided part or share of real estate.

The authority to direct the sale of the trust estate is to be looked for and is found in the statutes, and the authority conferred is abundant, the reason assigned for ordering such sale in this case being sufficient, and, as was said before, not open to contest on this appeal. Here the trust estate consists or will consist of an undivided part of the real estate, for it never can attach to the interest of Edgar Asch.

It is contended that the trust estate could not be sold because there is no trust estate in fact, and, therefore, nothing to sell. The learned justice at Special Term took that view and remarked in his opinion that, inasmuch as no estate can vest in the trustees until the death of the widow, and even then only in the event of such death during the minority of some of the children, there was no present estate in the trustees and nothing which may be made the subject of a sale by them;

In the Matter of the Application of Sarah Asch, etc.

and, therefore, he concluded that a sale of the infants' property was in no way dependent upon getting in a trustee's title, and that a conveyance of the remainders of the children and of the life estate of the widow and of the interest of Edgar Asch would be sufficient to confer upon the purchaser full title. But the trust provision in the testator's will cannot thus be summarily disposed of. While there is no present right of possession in the trustees and the trust estate is future and contingent, nevertheless there does exist such an interest in the trustees as would incumber the purchaser's title unless that interest were lawfully extinguished or transferred to the proceeds of a sale of the land.

We do not think the nature and character of the trustees' interest is such that it was incapable of being sold by order of the court. Contingent future estates in land are vendable and alienable. It is no objection to their sale that they may never vest in possession. There is no limitation contained in the statute upon the power of the court to direct a sale of such a trust interest. The power is conferred when its exercise is necessary to the protection or for the best interests of the estate. Here, the proceeds of sale would stand in the place of the real estate, and the trust would be transferred and attach to those proceeds. Upon the death of the widow, infant children of the testator surviving her, the trustees' right would instantly attach to the fund representing these infants' interests.

The appellant has not called our attention, either upon the oral argument or upon his brief, to any other objection affecting the substantial questions arising under the will of Mr. Asch; but it may be well to state that we have not failed to consider what would be the effect upon the title if any child of the testator should die before the life tenant. By the provision of the will, it is only those children who shall be living at the time of the death of the life tenant who take in remainder. The interest of a child dying during minority and before the mother, would pass to the other children. All the

In the Matter of the Application of Sarah Asch, etc.

children are parties to the proceeding, and every interest they can have would be acquired by the purchaser; but if all the children should die before their mother, still their interest would pass to the purchaser, for in that event there would be intestacy as to the remainders, and the children would take as heirs at law. As we have remarked before, that is unprovided for in the will. If it happens, a contingent estate would pass to the heirs at law as of the time of the testator's death. We agree with the learned counsel for the respondent that it is not an objection that their estate as such heirs could never vest in possession, but depends for its actual enjoyment upon their own death before the life tenant. Nor is it an objection that the same persons who would take as heirs at law are given another interest under the will. Authority for that proposition is found in Doane v. Mercantile Trust Co. (160 N. Y. 494) and the cases there cited. Nor is it an objection that unborn grandchildren of the testator might hereafter become interested in the property. The rights of unborn children are represented by the persons from whom they would take by descent, such persons being parties to this proceeding (Kent v. Church of St. Michael, 136 N. Y. 10, and cases cited). The interests of all who are or may become entitled to any of the proceeds of sale are protected by the provision of the order directing a conveyance which requires that the special guardian report under oath to the court the disposition and investment of the proceeds, and that annual accounts be rendered thereafter by him of the distribution and investment of such proceeds which remain in his hands, until the termination of the life estate and the trusts.

The claim that there are defects in the procedure which tend to invalidate it is not sustainable. It is said that the trustees were not required by the order of the court to execute the deed; but, as we have stated, the purchaser by his own contract disposed of that matter. The order directed that if the purchaser required the trustees to execute the deed, they should do so; and he did so require. Nor was it necessary for

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