made by the Supreme Court appointing Samuel F. a trustee to carry out the trusts created by said will for the benefit of said Jane H., and conferring upon the new trustee all the powers of the original trustees.

Thus in 1873, the title to the tract of land in question was vested as follows:

An undivided one-quarter in the devisees under the will of testator's son Edward G., an undivided one-quarter in the devisees under the will of testator's son Thomas H., an undivided one-quarter in the heirs at law of testator's daughter Joanna, and an undivided one-quarter in Samuel F. as trustee for testator's daughter Jane H.; all of said interests being held subject to the powers conferred by said. will upon the executors and trustees therein named.

All of the executors and trustees under said will having died as above stated, an action was instituted in the Supreme Court in October, 1873, by Edmund, a son of testator's daughter Joanna, and a grandson of testator, against all the persons then in being, who would be entitled to a share in the proceeds of a sale of the tract in question, for the purpose of obtaining a judgment appointing new trustees to carry out the only remaining active trust created by said. will, and to exercise the powers thereby conferred upon the executors and trustees therein named.

In brief, the defendants were the devisees under the will of Edward G., the devisees under the will of Thomas H., the heirs at law of Joanna, Samuel F., theretofore appointed by said court trustee for Jane H. and her issue, and said Jane H. This action resulted in a judgment entered in October 1873, providing among

other things "that Samuel F. and William H. on their filing with the Clerk of this court a bond to the people of the State of New York in the penal sum of fifty thousand dollars, with sureties conditioned that they will well and faithfully execute the trusts conferred upon them, obey all orders of this court in respect thereof, and faithfully account for and pay over all moneys or other properties received by them, which bond shall be approved of, as to the form and manner of execution, by one of the Justices of this Court, be and they hereby are appointed trustees to carry into effect the trusts contained in the last will and testament of the said F., deceased.

And it is further ordered that the said Samuel F. and William H. and the survivor of them, have all the powers of the original trustees and executors named in the said will of the said F. and that they have power and authority to make sales of real estate, convey the same to the purchasers or purchaser, and to distribute and dispose of the proceeds of sale in like manner, and as fully and amply as if they had been named by the said testator in his said will, and clothed with the powers therein conferred upon his executors and trustees.

Jane H., a daughter of testator, died in 1883, without issue, leaving various nephews and nieces her only heirs at law. Her husband died before her. She also left a Will which it is unnecessary to consider.

After her death, the said Samuel F. and William H. the new trustees appointed as above mentioned, offered the tract in question for sale. The trusts created by said will had then ceased.

The following question arises: Does the power to sell and distribute the proceeds

of sale as conferred by the will appertain to the office of executor as such? Upon the death of the last surviving executor, can such power be exercised only by an administrator with the will annexed appointed by the probate court, or is it a power in trust, the execution of which devolves on the Supreme Court upon the death of the last surviving trustee, and can such power be exercised by the trustees appointed by said court to carry out the trusts created in and execute the powers conferred by, said will, after the trusts have ceased?

We think there can be no doubt that there is an imperative direction to sell. The language of the will is, in part, as follows: "Upon the decease of my said wife I order and direct the whole of my estate, real and personal, to be converted into cash and the proceeds thereof to be divided "**. The real estate is to be distributed as personalty, but it would seem, nevertheless, that the provisions of the revised statutes as to uses and trusts and powers, are applicable to this case.

The revised statutes define a power as follows: "A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform." (1 R. S. 732 Sec. 74).

A power is general when it authorizes the alienation in fee, by means of a conveyance, will or charge, of the lands embraced in the power, to any alienee whatever. (Id. Sec. 77).

A general power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds or any portion of the proceeds or other benefits to result

from the alienation of the lands according to the power. (Id. Sec. 77).

The revised statutes further provide that "Upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pass to his personal representatives; but the trust if then unexecuted, shall vest in the Court of Chancery, with all the powers and duties of the original trustee, and shall be executed by some person appointed for that purpose, under the direction of the Court. (1 R. S. 729 Sec. 68).

Section 102 of the article of the revised statutes in relation to powers (1 R. S. 734) makes applicable to powers in trust and to the grantees of such powers sections 66 to 71 of the article in relation to trusts.

By applying this section to powers in trust and to the grantees of such powers, we are necessarily led to the conclusion that upon the death of the surviving grantee of a power in trust, the power, if then unexecuted, shall vest in the Court and shall be executed by some person appointed for that purpose.

At the time when the new trustees were appointed, the trusts created by said will had not ceased. There can be no question that the Court had jurisdiction to appoint new trustees to carry out said trusts. But it would seem equally clear from an examination of the statutes above referred to, that even if the judgment of the court had been rendered after the trusts had ceased, it would have been effectual to clothe the new trustees with the power to sell and make distribution.

The power to sell and make distribution conferred by the will under discussion, comes under the head of general powers in trust as defined by the revised statutes. The duties remaining to be performed by

the trustees after the trusts had ceased, were not properly duties appertaining to the office of the executor but were powers in trust for the purpose of dividing the estate. There is no necessity for the probate court to appoint an administrator with the will annexed for the purpose of executing said power even if such power could properly be exercised by such exercised by such administrator.

A question similar to the one under discussion arose in Delaney v. McCormack, 88 N. Y. 174.

The Will of W. provided as follows:

"Thirdly. I give, devise and bequeath unto my said son James, during his natural life, all the rents, issues and profits of my real estate, and in case he marries and has lawful issue then and in the last mentioned event and thereupon I give, devise and bequeath to my said son James all and singular my real estate whatsoever and wheresoever, to have and to hold the same to my said son, his heirs and assigns forever.

*

Fifthly. In case of the death of my son James without ever having had any lawful issue, I desire my executors who then be surviving, or the last survivor, to sell all my real estate, and to distribute the proceeds thereof amongst my next of kin as personal estate according to the laws of the State of New York for the distribution of intestate personal estate; and for that purpose I authorize my said surviving executors or the last survivor to execute good valid and sufficient conveyances in the law to transfer saide state and vest the same in the purchaser and purchasers in fee simple."

The testator's son James survived his father and afterwards died unmarried and without issue.

The executors named in the will were the testator's wife, his son James, and his friend Tighe Davey. All the executors were dead at the time of the commencement of this action, which was brought by the plaintiff claiming to be entitled to testator's entire estate, against the defendants who claimed to be entitled to a distributive share therein, to obtain a construction of the will and the appointment of a trustee to carry out its unexecuted provisions.

It was held that the will created a general power in trust, the execution whereof was imperative; that upon the death of the surviving trustee his powers and duties became vested in the Court and might be exercised by some person appointed by it for that purpose.

The case of Farrar v. McCue, 89 N. Y. 139 is also in point.

The will of F. after various legacies gave his residuary estate to three children. named; the executors being directed to invest and keep the same invested, to apply the interest to the support and education of said children until they respectively arrived at age; after that to pay to each the interest upon one-third, and after the death of two of the children, to divide the principal between the survivor and the heirs of the two deceased. The executors were empowered to sell and convey the real estate and to invest the proceeds for the purposes of the will. One of the executors died, the others after paying debts and legacies and settling the estate in all respects, except as to the sale and distribution of the proceeds of the real estate, resigned. Their resignation was accepted by the Supreme Court and two more trustees were appointed; at this time the three children were living and

all were of full age. It was held, that, conceding the executors were merely donees of a power of sale, it was a general power and imperative and so subject to the same statutory provisions as to the substitution of new trustees as are applicable to express trusts; that the new trustees therefore were lawfully substituted and were clothed with the powers conferred by the will upon the original trustees.

The case of Greenland . Waddell, 116 N. Y. 234, throws very little light upon the present discussion. The will which was presented for interpretation, was held to work an equitable conversion

of the real estate into personalty; but the Court deemed it unnecessary to discuss the question whether it would be in the jurisdiction of the Supreme Court to appoint a trustee to execute such a power in trust as that in question in the event of vacancy in the office of executor, or whether the power must in such case, be exercised by an administrator with the will annexed.

The conclusion would therefore seem to be warranted, that the trustees appointed by the Supreme Court to carry out the trusts created in and execute the power conferred by the will of F. can convey a good title to the tract in question.