#### Laurent J. Tonnele, Appellant, *v.*Francis S. Wetmore and Others, Respondents.

First Department,

March 13, 1908.

Testamentary trust—judgment — when decree of invalidity not binding upon unborn beneficiary—jurisdiction of equity over trusts — will — suspensión of power of alienation — power in trustees to postpone sale —when power permissive merely — effect of expiration of restriction prior to title in trustees. .s

The jurisdiction of a court of equity over trusts exists only when the court is moved by the trustee or *cestui que■ trust*to enforce a correct ¡administration of the trust. The court is without jurisdiction to decree that such trust is void *687where the complaint in a suit brought to determine the validity of the will alleges that the trust was void for unlawfully Suspending the power of alienation and seeks solely a determination to that effect.

Although on the death of trustees the trust, by virtue of statute, vests in the Supreme Court to be exercised by it or through a trustee by it appointed, it is vested with power only to enforce the trust, not to destroy it.

Still less has a court of eqúity jurisdiction under such complaint to determine the rights of persons yet unborn who may become entitled to a remainder in fee simple where the trustees in whom the title had vested were déad aúd no successors had been appointed or were before the court to protect ¡the rights of such possible remaindermen.

Hence, a decree rendered in such action determining that the trust was void for unlawfully suspending the power of alienation is not *res adjudicata*as against a remainderman then unborn, even though the father of the remainderman who was made a life beneficiary was a party defendant and interposed no answer and in effect consented to a judgment declaring the trust void. As the father - as heir shared as a tenant in common subject to a prior life estate, if the trust failed, his interests were adverse to his- children who if born would take as remaindermen were the trust sustained.

Heither is such adjudication binding'upon a remainderman then unborn merely because other grandchildren of the testator also entitled to take as remaindermen were then living and made parties defendant.

Where a will devised lands to the testator’s widow during her natural life or so long as she remained unmarried and at her death or remarriage devised the same in trust to be *divided*equally among ■ the testator’s eight children, each child to receive only the net income of his share - during life, the share at his death to “go to and vest in his * * * lawful issue,” with remainder over in default of issue, there is no unlawful suspension of the power of alienation, as ho one of the trusts can exceed two lives in being.

Such devise does not unlawfully suspend' the power of alienation although the trustees were further given “full power” to retain the whole property in their hands unsold until a specified date, with further power, however, to sell and convey all or any part of the real estate' ¿nd invest,the proceeds, etc., as they might deem for the best interest of the children and the improvement of the estate. This, because the permission to retain the lands, construed in the light of the clearly expressed intention of the testator as to the disposition of his property, meant merely that the trustees should not be compelled to sell before the time set in case the trust should last until that time.

Moreover, as the trustees took no title until the expiration of the widow’s life estate, and as she did not die until the expiration of the time during which the trustees were empowered to retain the lands, there was in fact no restraint upon their power of alienation, and said clause wras of no effect even though construed as mandatory.

Moreover, if • said "power to retain the lands were void, it would not affect the trust which was complete without it. i

Houghton and Laughlin, JJ., dissented, with opinion.

*688Appeal by the plaintiff, Laurent J. Tonnele, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the: county of New York on the 17th day of September, 1907, upon the report' of a referee dismissing the complaint upon the merits.

*John It.*Halsey, for the appellant. .

*William Temple Emmet,ioY*the respondents Francis S. Wetmore and others. . .

*Grenville I Emmet,*for Augustus Zabriskie, guardian ad litem for infant defendants, respondents.

ISGBAIIAM, J.':-

This action is in ejectment to recover possession of an undivided interest in real property in .the city ■ of New York. The property was owned,by one John Tonnele, who died on the 26th of November, 1852, leaving a last will and testament that was duly admitted to probate. The testator' left a widow and eight children, his heirs at law. By this will the testator devised to his wife the real property in question during her natural life or as long as she remained his widow, and devised and bequeathed all the rest and residue of .his property,, both real and personal, “ including, after the death or remarriage of my. said wife, whatever I have herein given or devised to her for life or widowhood, respectively,” to his eight children to be equally divided between-tliem share and share alike, “ in such manner that each child shall receive only the net rents, income and profits of his or her share during her life, and at the death of each, child his' or her share - shall go to and vest in his or her lawful issue,” with a remainder over in default of issue. The will further provides.: *“Seventh.-*And in order inore fully to carry out the objects of this my will, .! do hereby appoint and . declare my executors hereinafter ■ named to be trustees of all property, estate or interests herein "given ..or devised to any one of my children, or that any of my children may be entitled to by virtue of any provision in this my last will, and during the life of such child (excepting the life estate in the mansion house devised to my son) with full power. to retain all such property in their hands .unsold and undivided until after the year-eighteen: hundred and sixty-seven. And 1 do authorize my said *689executors to sell and convey all or any part of my real estate, and all real estate that may be purchased by them, and to invest my personal estate and the proceeds of the sale of such real estate at interest on bond and mortgage of real estate, or in Government or State stocks, or to lay out the same in the' improvement of my real estate or in the purchase of other real estate and the improvement thereof, as may seem to them most for the interest and advantage of my children, and for the improvement of my estatej and to change such investments as they shall judge best from time to time.”

And the will appointed the testator’s wife, Bobert Gilchrist and Abraham 0. Zabriskie executors. The plaintiff, being the sole issue of Laurent John Tonnele, one of the sons of the testator, would under this disposition of' the testator’s property, if valid, be entitled on his father’s death to one undivided eighth part of the testator’s real and personal estate. The testator’s widow died in January, 1868, the plaintiff was born on the 2d of May, 1879, and the plaintiff’s father died on the 8th day of June, 1901. *•*

The referee found that on the 22d of October, 1874, after the death of the testator’s widow but before the birth of the plaintiff, an action was brought in the Supreme Court of the State of Yew York for a construction of the will of the said John Tonnele, deceased, the plaintiff in which action was Eloise Gedney, a daughter of the testator, and Gilbert Gedney, her husband; that the defendants in that action were the other surviving children of the testator and his grandchildren then living; that the plaintiff herein was then unborn, but that his father, Laurent John Tonnele, was a party defendant; that the grandchildren of said John Tonnele living 'at the commencement of that action were all minors and were represented by guardians *ad litem, •*that the complaint in that action claimed that the will of the testator was void as violating the statute against perpetuities ; that that action was tried before a justice of the Supreme Court without a jury and resulted in' a decision dated March 5,1877, that tiie provisions of the said will creating and declaring trusts of the estate of the testator suspended the power of alienation beyond the period the statute* permitted and, therefore, were void, and that upon the death of the said testator the children then surviving *690became-seized of his lands and hereditaments in the State of New York in-equal shares as tenants in common, subject to the life estate, óf their -mother, Cecile Tonnele, and judgment was entered in accordance with that decision.. ' And the learned referee held as" conclusions of law that the- questions presented to the court- on or about the 22d of October, 1874, in the action wherein Eloise Gedney and Gilbert Gedney were plaintiffs and Laurent J. Tonnele, father of the plaintiff herein, and others were defendants, involved the validity of the whole scheme of the testator John Tonnele^ as affected by the validity of the trusts he attempted to create with regard to all the shares of his children and grandchildren, and that. such questions were properly within the equity jurisdiction of the ' said court; that the interests alleged by the plaintiff in the present action to have been created by the will of John Tonnele, deceased, were -represented by the infant parties to the said suit; that the judgment referred to is an adjudication binding upon the parties )0 the action ; that the plaintiff in this action -lias no right, title or interest whatsoever in and to tlie premises described; and directing judgment, therefore, dismissing the complaint. Judgment was., entered upon this decision and from that judgment the plaintiff appeals.

The learned referee did not,pass upon the question of the validity of the trust created by the will determining the question solely upon the binding force of the judgment of 1877. There are, therefore, two questions',presented : *First,*whether the, judgment entered in-the'action in 1877 is an adjudication as to the Validity of this will'that, is binding upon the plaintiff; and, *second,*if not such an adjudication, wh'ether this will is void- as a violation of the. statute. I will first discuss the question as to the binding force of the adjudication of the action in the .Supreme Court brought in the ■ year 1874. The judginent. roll in that action was introduced in ' evidence. The complaint therein alleges the death of John.Tonnele on the 26th of.'November, 1852, seized and possessed of the real property in question and other real property in, the:-State of New York; that he left a last will and testament which was duly admitted to probate; that the testator’s widow qualified ás executrix and subsequently died; that the other executors failed to qualify and that they subsequently died; that since the death of the testator *691two of his children mentioned in his will died without issue ; that three of his daughters have married and had children who were infants and who were made parties defendant; “ that the devise in the fifth section of said will of the remainder of the real estate whereof the said intestate died seized is contrary to the statute in such case made and provided. Wherefore the plaintiffs demand that the court shall adjudge and declare the true intent and meaning of the said last will and testament hereinbefore set forth and whether any, and if any, what provisions therein contained are contrary to the laws of the State of blew York; and that such portions may be declared null and void; gnd that the plaintiffs may have such other relief or such further relief or both as shall be agreeable t'o equity.” To this complaint an answer was interposed by several of the infant defendants, the grandchildren of John Tonnele, by guardian *ad litem,*denying that the devise in the 5th section of the will was void; alleged that each of the then living grandchildren of the testator was entitled to a remainder expectant upon the death of the life tenant, and prayed that their several rights and interests under and by virtue of said will might be confirmed and established by the judgment of the court. One infant defendant answered, by his guardian *ad litem,*in the form of a general answer for an infant defendant, alleging that he was a stranger to all and singular the matters and things in the complaint contained. The defendant Laurent -J. Tonnele, the father of the plaintiff in this action, appeared in the action but interposed no answer 1 and did not defend, but in effect consented to a judgment as demanded. Upon the pleadings the court found the facts and found as conclusions of law: *Fvrst,*that the provisions of said will creating and declaring trusts of the estate of the testator suspend the power of alienation beyond the period the statute permits and are, therefore, void; *second,*that upon the death of the said testator his children then surviving became seized of his lands and hereditaments in the State of blew York, in equal shares, as tenants in common subject to the life estate of their mother, Cecile Tonnele ; *third,*that the defendant Laurent J. Tonnele and other children of the testator are tenants in common in fee simple absolute of the premises described in the complaint, the interest of the said Laurent J. Tonnele being subject to the inchoate right of dower of his wife, Mary B. Tonnele. *692Upon this decision judgment was. entered. It adjudged that the provisions of the will were void; and that the children of thé testad tor living at the time-of. lii's'death became seized, of all lands and hereditaments in equal shares as tenants in common ;' tllat the testator’s' children who were parties defendant were' tenants in common in fee simple absolute Of the premises described in the complaint. It awarded costs -to' alt the parties, with extra allowances; provided that the costs be made a general charge and lien Upon the lands, tenements and'hereditaments described in the complaint; that the plaintiff' Eloise Gedney have judgment' arid execution against .the defendants for the costs and allowances awarded to her; that the Various defen d ants have judgment arid executiob against said plaintiff for the costs awarded to them; that the infant defendants have judgment-and execution against the plaintiff and the adult defendants for the costs and 'allowances awarded to them; that out of' the moneys collected or paid under and by virtue "of the judgment there be paid to the attorneys for the several’ parties the costs awarded; that On receiving the moneys collected ;by virtue of the judgmerit it should be the duty of the' attorney of attorneys receiving the same to divide the same without delay' among the attorneys entitled thereto; arid the clerk of the city and -county of Mew York was directed to docket the amounts for which .judgment and execution are awarded as a judgment against the parties rigainst; whom the same áre thereby made á judgment, and to discharge said' judgments of record as a charge or lien against any of the said parties oh receiving a satisfaction piece; ■ The referee has: determined that this judgment is an adjudication bindirig upon the plaintiff, who was then- unborn, that' the provision, of the will which devised to him á remainder in a portion of this property is void, and stands as a bar to his claiming title to the property *so*devised'to him.

The plaintiff has never had his day in court. .Before he was born, by a judgment in ari- action to' which" riéither he nor any one representing' him was a' party, where the ititerests Of his father and Mmself wefe antagonistic; where to get an estate in the property the father, in effect, consented that plaintiff should be despoiled, without attempting to protect his rights, and in which no relief was asked for except an adjudication that a will which devised real property to him be declared void, his property has been taken from him, and *693those who have got it seek to have that judgment stand as a, bar against his recovery of what belongs to him.

In the first place, it is quite pertinent to, inquire as to the jurisdiction of the, court to entertain such an action. Under the will of John Tonnele, if valid, the fee of this real property vested in his trustees therein appointed, (1B. S. 729, § 60.) Upon the death of the trustees under the statute the trust vested in. the Supreme Court* to be executed by it or by trustees appointed by it. (1 B: S. 730, § 68.) In this action no trustee was before the court, and the court was not asked in any way to execute a trust or to protect the title or rights of those interested in the property as beneficiaries or remaindermen.. Whatever, right a trustee when appointed would have to this property in trust for unborn descendants of the testator, was neither recognized, protected nor respected. The infant defendants who were, then entitled under the will of the testator to a remainder in his estate could not in any way represent the rights of the plaintiff in whom there vested a remainder upon his birth, Whatever interest in the estate these infant defendants might have had in so far as it affected the plaintiff’s share of the testator’s property became divested upon the plaintiff’s birth, and the judgment, therefore, could no more bind him than a conveyance of their interest would have affected him. Uowhere in the pleadings in the action is there any demand for a judgment that would affect the unborn descendants of the testator and no provision in the judgment directly adjudicating as to their rights. The determination. of the court was an announcement of its opinion of the legal effect of the will in an action in which nobody sought any affirmative relief in relation to the property, and an action to which those in whom the fee of the property had vested, namely, the trustees under the will, were not parties; in which they were not represented in anyway; and in which no judgment was asked for or granted affecting their title to the property, or the title of unborn infants for whose benefit .they held it.

It is clear, I think, that no cause. of action was alleged, in the complaint in the action in which this judgment was entered, and the *694court had ño jurisdiction in that action to determine as to the validity of the trust Contained in the will so as to bind any one not á party to- the action. No right to this real property was alleged and no relief in relation to it is asked. - All .that the court wa,s asked to do was to generally adjudicate as to the validity of the will, and the allegation that the trust was void took from the court the only ground on which it has ever exercised jurisdiction, viz., to enforce a trust; such jurisdiction has always been disclaimed by the courts of this State. The question of jurisdiction of a court of equity in relation to wills disposing of real property was considered ‘by the Coiirt of Appeals in *Anderson*v. *Anderson*(112 N. Y. 104), and in determining that case, after a review of the authorities, the court said: “These are all. the cases cited by counsel upon the question as to the inherent jurisdiction of a court of equity in this State -over the subject matter of an action like this. We do not . see that they support the contention that such a jurisdiction exists; On the contrary, the jurisdiction of courts of equity in considering doubtful or disputed clauses in a. will has been held with entire uniformity by the courts of this State to result from its jurisdiction over trusts, and that exists only when the court is moved on behalf of an executor, trustee or *cestui que trust*and to enforce a correct administration of the power conferred by the will.” In *Matter of Mount*(185 N. Y. 162) the court, in-speaking of the authority vested in the surrogate by the Code -of Civil Procedure* to construe wills, said:. “The.intention of the' Code provision was to confer upon the surrogate power and jurisdiction similar-to that theretofore possessed by courts of equity. In one respect it.is probably a little broader, because a court of equity would not entertain an action brought by one claiming tile legal title in unqualified hostility to the will, while.the Code provision requires the surrogate to determine the validity of the testamentary disposition when challenged, as well as the construction of the will.” . In *Chipman*v. *Montgomery*(63 N. Y. 221) it was expressly held that a court'of equity, at. the suit of a person claim-, ifig as heir at law of a decedent, would not entertain: an action by such heir at law to have, declared void a trust contained in the will, *695the court saying: *“*The plaintiffs cannot entitle themselves to the intervention of the instrument while occupying such a position. They cannot, for the purpose of giving the court jurisdiction, allege a trust within the general powers of the court, and in the same breath deny the legal existence of the same trust, and insist upon legal rights inconsistent with it. The trust being invalid the court cannot entertain jurisdiction of the other matters. If the trust attempted to be created by the residuary clause of the will is legal, then there is no need of a judicial construction of the instrument, for no question is made as to its true meaning or the rights of the parties. If it is invalid, as in contravention of the statutes against perpetuities,* then the rights of the parties are purely legal and to be enforced as such. . The plaintiffs, to entitle themselves to the action and judgment of the court, either in the execution of the testamentary trust or in the construction of the will and the adjustment of the rights of the parties under it, must elect to take in subordination to the will and under the trust as created by the testator, and establish their rights as *cestuis que trust.*They cannot have the benefit of a trust which they repudiate, merely to give them a standing in court.”' (See, also, *Monarque*v. Monarque, 80 N. Y. 320.) The court of equity to which the appeal was made in that action had, therefore, no jurisdiction to determine any question presented to it as affecting the parties to the action, and it had much less jurisdiction, it seems to me, to determine the rights of the parties unborn to whom was devised a remainder in fee simple not before the court and where the trustees in whom the title to the property had vested, or no successors to such trustees were before the court to protect the rights of those for. whose benefit the legal title to the property had vested in the trustees.

The referee below relied upon *Kent*v. *Church of St. Michael*(136 N. Y. 10) and the respondents rely on that case to sustain his judgment. The decision in that case presented a different question and is rather an authority for the appellants. The action there commenced was to compel persons in whose name stood the record title of certain property to execute a deed of the property which had been conveyed to their testator, the deed of which had been lost. The grantor of that deed had died, leaving a will by which she devised *696to trustees all her. real estate to be by them divided into three equal parts, directing them to pay the income '.of one part to each of her three children during the lives.of her children respectively, and after the death of any child to. pay over and divide.the said share to' and among his or her children then surviving and the lawful issue of any child or children who might have died leaving issue in equal portions *per stirpes.*The plaintiffs in an action in which -they made. defendants the trustees under the will of the grantor, her three children and only heirs, and her grandchildren who were infants, had. alleged. these facts and asked that' the defendants execute and deliver, to the plaintiffs a good and sufficient deed so as to vest and confirm the title to the land absolutely in them as the representatives of the estate of Kent, the grantee. A special . guardian was appointed for the grandchildren defendants, the facts were, proved and judgment was entered pursuant to the prayer of ■the complaint. In compliance with the judgment the adult.defendants, which included the trustees and the infants by their special guardian, executed a deed.of the land to the plaintiffs, and the question was whether the trustees óf Kent thereby acquired a good title to the property. It will be noticed that under this will the trustees of the grantpr of the deed, had the legal title to the property in trust. The action was • commenced to compel them to execute a deed of the property of which., they were, the legal owners, but in which the equitable title was in the plaintiffs. All parties interested who- were then, alive were made parties to .that action. A court of equity had jurisdiction to decree that the owners of the record title of real property, the. equitable title of which was in another, should convey the legal title and making the owners in whom-the legal title had vested parties, namely, the. trustees, and '.all others who were interested as the *eestuis que trustent.*And as the court said :. “ Therefore the judgment against the trastees and heirs of Mrs. Stewart was in a proper action and proper form, and the question is whether.it will bind the after-born grandchildren, if any, of Mrs. S.tewart,” and after saying that the trustees* children and grandchildren of Mrs. Stewart could not cut off or affect the title in the land of unborn grandchildren by any conveyance *in paisj*that if the title to this land had actually been devolved under the- will of Mrs. Stewart and an action were brought to partition it, *697or to foreclose a mortgage upon it, or in some other way to change or extinguish the title, it woúld be the duty of the court to protect the rights of unborn grandchildren by setting apart land, or the proceeds of the land, to represent in some form their interests, held that where an estate is vested in persons living, subject only to the contingency that persons may be born who will have an interest therein, the living owners of the estate, for all purposes of any litigation in reference thereto and affecting the jurisdiction of the courts to deal with the same, represent the whole estate and stand not only for themselves, but also for the persons unborn; that this is a rule of convenience-and almost of necessity; that the rights of persons unborn are sufficiently cared for if, when the estate shall be sold under a regular and valid judgment, its proceeds take its place and are secured in some way for such persons. This was said as preliminary to the discussion of the question determined, viz., that the land did not pass under the will of Mrs. Stewart; that all that the plaintiffs in that case asked was a judg- ' ment confirming the title to the land which she had conveyed to Mr. Kent; that the living -parties defendant in that case were' all opposed in interest to the plaintiffs and the grandchildren belonged to and represented the class to which the unborn persons would belong; that in such a case it is safe to permit the living to represent the unborn and the unborn must be bound by the judgment confirming the title.

It seems to me that that case is an authority for the plaintiff. Here the court .had no jurisdiction'to deliver~any judgment, merely determining a will was void, and the sole object of the action was to procure such a determination. The father of this unborn plaintiff would secure under such a judgment absolute title to the property, cutting off his children for his own. benefit. The other grandchildren of the testator would have no possible interest in protecting the claim of the plaintiff, while the trustees of the estate, in whom was vested the title to the property, were not parties to thé action, and no one was there to protect their interest, or the interest of those for whom they held the estate in trust. The action was not brought to enforce the right of the plaintiff as against the trustees of the estate, and the persons whom they represented; there was no provision in the judgment protecting either the estate or the *698unborn children, who would be entitled to the property upon the. death df the life tenant, and this judgment was in an action over which a court of equity had no jurisdiction to render any judgment.

If the court had jurisdiction to determine this .question in a proper áction, with the proper parties before it, it seems to me that there coúld be no judgment binding upon unborn children without the presence of a representative of the trust. By the will a trust was created during the lifetime of the testator’s children, and upon the death of his widow, title to all the testator’s property vested in the trustees, such trustees became the owners of the property, and held it for the children of the beneficiary for life, in whom a remainder had vested or would vest upon the birth of-those born after the trust became established. These trustees died, and under 1 Revised Statutes, 730, section 68, the trust vested in the Supreme Court,* with all the powers and duties-of the original trustees, to be executed by some one appointed for that.purpose under the direction of the court. A reference to the revisers’ notes in relation to this section† shows that the intention was simply to change the rule so that the property subject to the trust should not descend to the per-, sonal representatives or heirs at law of a deceased trustee^ but that ori the death of the trustees, the trust estate would vest in the Supreme Court, to execute the trust by a person appointed for that purpose under the direction of the court. It was for the enforcement of the trust that the estate vested in the Supreme Court — not for its destruction, and if there was no trust, nothing vested in the court;' The fact that the Supreme Court had vested in it a trust which it was directed by the statute to enforce by a person to be appointed by it and under its direction did- not- place it in any different relation to the trust than if the Supreme Court had, under the general authority conferred upon it, appointed a substituted trustee. In "no sense can it be said that- the owner of the property was before the court, or that, the court could by a judgment bind those who subsequently came into being, and who would then become entitled to a vested remainder where the only authority of the court over the trust was to enforce it.

*699As to the remaining question, as to whether this whole trust was void, I am equally clear that it was a valid trust. As in all cases in the construction of a will, the first question is to ascertain the intent of the testator, and that intent I believe clearly appears. The testator here gave to his wife a life estate in all of this property. Upon her death the property was to be divided among his eight children equally, in such manner that “ each child shall receive only the net rents, income and profits of his or her share during her life, and at the death of each child his or her share shall go to and vest in his or her lawful issue.” The methods by which this scheme is to be carried into effect are provided for in the 7th clause of the will. By that clause the testator appointed his executors to be trustees, of all his property, given or devised to any one of his children during the life of such child. There was here provided a limit for the continuance of the trust. The widow had a life estate irrespective of the trust. Upon the termination of that life estate the property was divided into eight parts,and one part was then devised to the trustees to hold during the life of each child, and immediately upon the death of that child the remainder vested in his issue and in default of issue in the issue of testator’s other children. Nothing, it seems to me, can be clearer than that this was the intent of the testator and that such a trust is valid is settled. *(Matter of Mount,*185 N. Y. 162, and cases cited.) H'e then prescribes the powers of the trustees. He says the trustees should have full power, not as an extension of the estate which he had devised to them, but during that period, to retain all such property in their hands unsold and undivided until after the year 1867. ■ And this was coupled with full power to the trustees to sell and convey all or any part of his real estate and to invest his personal estate and the proceeds of the sale of such real estate as they shall deem best. Whatever may be said as to the construction to be given to permissive words when it shall be necessary to carry out the intent of the testator that they should be considered mandatory, .a mere permission has never been considered to be mandatory when the result would be to change the clearly expressed intention of the testator and to render void a carefully prepared scheme as to the disposition of his estate. What the testator clearly meant was that in case this trust should last until 1868 his executors should not be compelled before that time *700td sell any of liis real estate. The provision which says that his executors shall have power to retain his property until, the year 1868, ";s coupled with a power *“*to sell and convey all or any part of my real estate * * * as may seem to them most for the interest and advantage óf my children,” and does'not prevent the alienation óf the estate for a moment. In addition it should be noticed that this power never became effective for any purpose. The widow was given a life interest in the property and it was only upon her death that any title ■ passed to the trustees. She did not . die until January, 1868, so under no circumstances could the trustees have sold' the property until after the period named by the testator had expired. I am well aware of the rule that, in considering 'the validity of a- disposition ■ of real property under which an attempt' is' made to restrain alienation, the effect is to be considered' as if the alienation was restrained for the' longest period contemplated. But here- as "the estate did not vest in the' trustees until after-this period there was not and never could be any restraint upon their power of alienation and, therefore, the clause as it stands, evén though it was mandatory, could have no effect upon the right to sell or convey the property. I also think that if . this1 clause was Void it would' not affect the trust, because without it the'trust was complete.' It would commence only upon the death of the'widow and cóuld last only during the life of each child, for it is expressly provided that upon the death of each child the share of that child should go at once to its issue. The. power given to the executors as to the management of the estate was clearly conditioned . lipón the'continued exercise of that power only during the continuance of the trust. Upon no possible construction of this will can it be held that the trust could continue, whether the executors sold or did not sell the property, beyond the life of the widow and each child. The absolute title' to this property with ■ power to convey would necessarily vest in the issue of each child immediately upon the death of 'that child’after the death of the widow; and whether the trustees had or had not a power of sale that extended - beyond the' life of the widow and a child, or whether the trustees were prevented from exercising the' power of sale until after the death of the widow and a child, there was nothing in the will that postponed the absolute vesting of the share of" each child immediately upon *701the death of the child, the widow being then 'deceased. In no aspect of the case, therefore, can it be said that any of the provisions of this will tied up the share of any child for more than two lives in being. I am satisfied, therefore, that this adjudication was not binding upon the plaintiff and that the will was entirely valid.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., and McLaughlin, J., concurred; Laughlin .and Houghton, JJ., dissented.

*

 See 1 R. S. 723, §§ 14-16.— [Rep.

*

 Invested with the power and jurisdiction of the Court of Chancery. (See Const. 1846, art. 6; Laws of 1847, chap. 280, § 16; *Gardner*v. *Ogden,*22 N. Y. 327, 332.)—[Rep.

*

 See Code Civ. Proc. .§ 3634.— [Rep,

*

 See 1 R. S. 723, §§ 14-16; Id. 773, §§ 1, 3.- [Rep.

*

 See foot note ante, p. 693.— [Rep.

†

 See Fowler’s Real Property Law (2d ed.), 1016.— [Rep.

Houghton, J. (dissenting):

I think the judgment in *Gedney*v. Tonnele, whether it properly or improperly construed the will of John Tonnele, deceased, is binding on this plaintiff although he was unborn at the time it was rendered. While both the complaint and the judgment in that action are somewhat inartistic it is fair to say that the complaint asked construction and the judgment in fact, construed the trust provisions' of the will. The estoppel of a former judgment extends to those matters which are comprehended and involved in the thing decided as well as to those which were expressly ■ litigated and determined. *(Pray*v. Hegeman, 98 N. Y. 351.) A construction o.f the will was necessarily involved in reaching any conclusion and it is of no importance whether the conclusion reached was right or wrong.

That judgment was not collusive and the guardian *ad litem*representing the infants occupying the same relation to the will and trust estate which plaintiff when born occupied, and thus having a common interest with him, raised practically the same questions in behalf of the validity of the will and trust thereunder which plaintiff now raises in the present action.

The guardian *ad litem*by his brief then urged upon the court that the will should'be construed as “ a devise of each share to one of the testator’s children for life, with a remainder to his issue,” and that the provision as to not selling before 1867. was permissive and not mandatory. These are the only grounds upon which plaintiff now stands or upon which he can stand to uphold the will.

I do not understand that the principle upon which after-born cliil*702dren are bound as to their property rights by a judgment rendered prior to. their birth, depends.upon whether the person through whom they claim himself took a position in the litigation friendly to their interests. A judgment may be binding on those subsequently born, as I understand it, if there be some party connected with the litigation with a, like interest, whose claim in that regard is in good faith pressed upon the court for decision. Such is clearly the conclusion from the reasoning in *Downey*v. *Seib (185*N. Y. 427).

In *Monarque*v. *Monarque*(80 N. Y. 320) the judgment invoked as a bar was entered upon, consent, and in *McArthur*v. *Scott*(113 U. S. 340) it was. obtained without'any *Iona fide*defense on the part of those with like interest. In both cases the judgments were virtual frauds, on after-born children. In ,the l&ter case of *Miller*v. *Texas*& *Pacific Railway*(132 U. S. 662), where it was. held that contingent remaindermen were barred by a decree made before their birth, the court took pains to. .point out that the controlling feature in *McArthur*v. *Scott*was the fact that there had been no real defense to the prior decree, relied upon as a bar:

If the action of *Gedney*v. *Tonnele*was sufficiently defended by those having an interest in common with'the plaintiff,,it-only remains-to- be considered whether the court had jurisdiction to, render the judgment. The plaintiff, Mrs. Gedney, was a *cestui que trust*under the apparent trust contained in the will. The only qualifying- trustee had died and the trust was without a trastee. The testator left real property apparently affected by the trust. In the absence of any trustee the execution of the trust devolved upon- the Supreme Court. That court had' inherent power to execute the trust, and might take its execution upon itself and whatever, directions it might make in the course of such execution would be binding on all parties, *Kirk*v. *Kirk,*137 N. Y. 510; *Rogers*v. Rogers, 111 id. 228.) It could appoint a new trustee, but it need not if it did not choose. It made no appointment, and the *cestui, que trust*found real property in which she bad a qualified interest and. in which she conceived she had a greater'interest, in legal possession of the court and withheld from her by virtue of an. apparent trust.

Under such-circumstances she came into court, by action, making all living persons having any possible interest parties, and asked the court, to construe, the pretended trust by. which it held in legal cus*703tody the property of her father, the testator, and to say whether or not it was a good trust or a bad one. I think she had a right to do this, and that the court had jurisdiction to pass upon her request. Suppose she had come in by petition and asked the court to make some order respecting the trust, and the court had ordered all interested parties in being before it. Manifestly, under the above authorities, all parties would have been bound by any order thus made. That she came into court by action does not change the situation.

If there had been a trustee and he had brought an action as such trustee for the construction of the will, and all parties in being had been made defendants, concededly the judgment rendered would have bound after-born children, for the trustee would have been their representative. The same result would follow if the action had been brought by a *cestui que trust,*and the trustee had been ihade a party defendant and had joined in the request for a construction of the trust and direction as to his duties thereunder. *(Pray*v. *Hegeman, supra)*

I do not subscribe to the doctrine that prior to the enactment of section 1866 of the Code of Civil Procedure (which went into effect in 1880,* and hence after the judgment in question was rendered) a *cestui que trust*who was also an heir at law or devisee could not bring an action for the construction of a will to have an apparent trust contained therein declared void. Such an action is properly brought by one who is next of kin when the trust relates to personalty. *(Read*v. Williams, 125 N. Y. 560.)

Section 1866 of the Code is derived from section 1 of chapter 238 of the Laws of 1853.† That act provided that the validity of any actual or alleged devise or will "of real estate might be determined in like manner as the validity of any deed might be determined. It was expressly held in *Read*v. *Williams (supra),*where *Horton*v. *Cantwell*(108 N. Y. 255) and kindred cases are explained, that section 1866 (which- is but a paraphrasing of the law of 1853) extended the remedy by equitable action so as.to include suits for *704construction of trusts and devises brought by heirs claiming adversely to the will. I see no .practical difference between the law. of 1853 and the section of the Code in respect to the right to bring the action. There was no reason for enacting the law unless it related-to heirs and devisees who. would take the property, if the trust should be declared void.

The settling by statute of the right to bring an action to construe a will and determiné the validity of a devise of real property could only be in behalf of devisees and heirs who could take title except ■for the provisions of the will. Trustees already had the undisputed right to bring an action for the construction of the will under which they were acting, and to ask direction as to their conduct. *(Hawley*v. James, 5 Paige, 318, 488.) . There was no occasion, therefore, to-' enact a law in behalf of trustees, and- the law of 1853 must have related to heirs at law and devisees who would take if the trust . were swept aside. The dictum construing the act of 1853 in *Bailey*v. *Briggs*(56 N. Y. 415) as giving a right of action only for the. establishment of *disputed*wills, and not such a-right to the devisee or heir to construe the provisions of- a will, was expressly repudiated by the -decision in *Anderson*v. *Anderson*(112 N. Y. 104).

*Kalish*v. *Kalish [45*App. Div. 528) held that an heir.at law claiming in hostility to the will and not included in its trust provi- - sions could not maintain an action to declare the trust void. The Court of Appeals affirmed the judgment (166 N. Y. 368), but upon other grounds, and expressly held that an heir at law could maintain such an action (page 371).

*Wager*v. *Wager*(89 N. *Y.*161) and *Holland*v. *Alcock*(108 id. 312) and *Horton*v. *Cantwell (supra)*and *Anderson*v. *Anderson (supra)*and kindred cases are not to the contrary. "Each of these ■ decisions will- be found to turn on points other than the broad principle that an heir or devisee who would take if the alleged trust were void had no right to bring an action in equity to decláre the trust void. In most of them the action was by a .grantee of some devisee under the will who wanted his title confirmed because Of possible future claims. Surely in the absence of objection an heir or devisee whose title was cut off by an alleged trust and who would •take if ;the. trust were swept aside could bring such an action, and if the court entertained it the judgment which it rendered would be *705within its jurisdiction. With respect to a *cestui que trust,*however, which Mrs. Grednev was, even though au heir, there never was any question of the right to bring such an action. The books are full of actions brought by such plaintiffs.

. Mrs. Giedney could not induce the'trustee to bring the action nor make him a party defendant to one brought by herself because no trustee existed except the court itself in which she must bring her action if she brought any at all. She was a *cestui que trust,*and being an heir at law also did not disqualify her, and she had tire right to bring the action which she did and the court had jurisdiction to entertain it and plaintiff’s rights were sufficiently presented to the court by parties having a common interest with him and were properly defended, and the judgment rendered construed the will and is binding upop him, and, therefore,.conclusive, of his claims in the present action.

I, therefore, vote to affirm the judgment.

Laughlin, J., concurred.

Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.

*

 See Code Civ. Proc. § 3356.— [Rep.

†

 Amd. by Laws of 1879, chap. 316; rep. by Laws of 1880, chap. 345, § 1, subd. 30; Id. § 5.— [Rep.