#### Augustus Van Wyck, as Substituted Trustee, Etc., Plaintiff, *v.*Louis L. Richman, Defendant.

(Supreme Court, New York Special Term,

December, 1900.)

Marketable title — Notice of appointment of substituted trustee — Trust not destroyed by conduct of parties.

Where both trustees of express trusts in real and personal estate die without disposing of the real estate and it is thereafter duly decided that the trust has devolved upon the Supreme Court, neither the heirs-at-law nor next of kin of deceased beneficiaries, taking as legatees, who alienated their interests in the trust in their lifetime, are entitled to notice of an application for the appointment of a substituted trustee.

Where the title to the *corpus*of the trust has been duly decided to have been at all times in the two trustees, ultimately entitled as legatees, and they or their representatives have at all times been in possession, the fact that, during the existence of the trust, one trustee acquired the interest of the other and that of another beneficiary as legatee, does not destroy the trust.

Action to compel the defendant to complete his contract to purchase real property.

Mulqueen & Mulqueen,, for plaintiff.

M. Hallheimer, for defendant.

Andrews, G. P., J.

This is an action to compel the defendant to perform his contract to purchase No. 127 Pitt street, in the city of New York. The property in question was purchased by William Appleby in 1827. He died in 1870, seized of the premises, leaving a will, which was duly admitted to probate by the surrogate of the county of New York, in which he .named as executors and trustees his sons, James Appleby and Joseph O. Appleby. James Appleby qualified as such executor and trustee, went into possession of the property, collected the rents and profits, and accounted for the same before the surrogate, up to the time of his discharge, October 23, 1878. Thereafter the other executor *405and trastee, Joseph O. Appleby, qualified and went into possession of the premises, and collected the rents thereof until his death, on June 27, 1883. From time to time he accounted as such executor and trustee to said surrogate, and distributed the rents, after the payment of the expenses, in accordance with the decree- of the surrogate. After his death, his executors, William T. Black, Howard H. Smith and Hary Appleby, accounted for such rents collected by said Joseph O. Appleby, from the time of his last accounting up to his death. Thereafter William T. Black was appointed administrator, with the will annexed, of William Appleby, deceased, went into possession of the premises, collected the rents for the estate of William Appleby, and accounted from time to time to the surrogate for such collections, and distributed the same in accordance with the terms of the decree of the surrogate entered upon various accountings. Sarah Ann Appleby, the annuitant named in the will of William Appleby, died February 2, 1895. William T. Black continued as administrator with the will annexed up to 'Hay 5, 1899, when, a partition suit having been brought, the Appellate Division in this department decided that, on the death of the trustees named in the will of William Appleby, the estate devolved upon the Supreme Court, and that a trustee should be appointed by the said court to carry out the provisions of said will. Horsfield v. Black, 40 App. Div. 265. Thereafter Augustus Yan Wyclc was appointed trustee, and proceeded to carry out the provisions of the will by a sale at auction of the property Ho. 474 Grand street and Ho. 127 Pitt street, in this city. Ho objection was taken to the title of Ho. 474 Grand street, and the trustee conveyed said property. The defendant in this action has refused to complete his purchase, and has filed various objections, as follows: *First.*That the trustee .cannot convey the premises Ho. 127 Pitt street, containing 24 feet lOf inches in front, 25 feet in the rear and 100 feet on both sides. This objection is not sustained by the testimony of Hr. Towle, surveyor, who was called as a witness for the defendant upon the trial. He testified that he had surveyed the lot Ho. 125 Pitt street; that on this lot had been erected a six-story building; that on Ho. 129 Pitt street there had been erected a four-story building; and that between the northerly wall of one of the building’s and the southerly wall of the other stood the vacant lot Ho. 127 Pitt street, and that the vacant lot contained the frdl amount of land which the trustee agreed to convey. *406He also testified that, if he began his description from the northerly line of the lot known as Ho. 125 Pitt street, and described the lot Ho. 127 Pitt street in the manner in which it was described in the advertisement published by said trustee, his description would contain all the land which the trustee agreed to sell; also, that if the description of the property was taken from Stanton street instead of Houston street, that the trustee could convey all the vacant land he agreed to sell. The only difference between Hr. Towle and the surveyor for the trustee is as to the true line of Houston street Hr. Towle testified that originally Houston street, at this point, was laid -out on the Delancey farm map as a 50-feet street, and that all the streets parallel to Houston street in this locality were also 50 feet wide; that Houston street had been legally opened as a 50Lfeet street; that on the atlas of the city of Hew York Houston street appears as a 50-feet street, but that by recent actual survey he now makes Houston street at this point to be only 49 feet inches in width. Hr. Lynch, the surveyor for the trustee, made Houston street a 50-feet street, and he described the property as 200 feet 3 inches from the comer of Houston and Smith streets, while Hr. Towle, making the street to be only 49 feet 8-| inches wide, begins his description of the property in question as 200' feet 8¿ inches from Houston street. Hr. Towle, however, said that even though he should begin 200 feet 8-| inches from that comer, the vacant lot in question is described in the way the trustee agreed to convey it. The trustee offered the defendant a deed describing the property as 200 feet 3 inches from the corner of Houston street, and also offered to give him a deed describing the property in the same way it was described in the deed to William Appleby in 1827. There is no serious dispute between the surveyors. Both testify that the amount of vacant land which the trastee undertook to sell is contained in the lot known as Ho. 127 Pitt street, and that the amount of land is between the two buildings, one a six-story and the other a four-story building; that the land can be described from Stanton street as well as from Houston street, and the amount of land which the trustee offered to sell could be conveyed to the purchaser by such description. Under these circumstances, this objection is not well founded. *Second.*The second objection is that all the parties entitled to notice did not receive notice of the application for the appointment of a trustee. This objection raises a question of law, the purchaser claiming that *407all the *cestuis que trust*named in the will of William Appleby, deceased, or their heirs or next of kin, are entitled to notice of the application for the appointment of a trustee. Under the "will •of William Appleby and the codicils thereto, his executors and trustees were to pay to Sarah Ann Appleby an annuity of $800 a year, and on her death the property was to be distributed, share and share alike, among his children, James Appleby, Walter A. Appleby, Joseph C. Appleby and John A. Appleby. On January 2, 1878, James Appleby executed a mortgage of all his right, title and interest in the estate of his father to Joseph O'. Appleby. This mortgage was subsequently foreclosed, and at the sale Joseph 0. Appleby bought all the right, title and interest of James Appleby in the estate of William Appleby, deceased. On February 18, 1880, Walter A. Appleby sold to Joseph O. Appleby all his right, title and interest in the estate of William Appleby; so that, at the time of the application for the appointment of a substituted trustee in the place of James Appleby and Joseph O. Appleby, both deceased, the only persons having an interest in the estate of William Appleby, deceased, were the heirs-at-law and next of kin of Joseph ■O. Appleby, deceased, and. the heirs-at-law and next of kin of John A. Appleby, deceased. Walter A. and James Appleby, having aliened their interests in the trust estate many years prior to this application, their heirs-at-law and next of kin had no interest whatever in the estate, and were not entitled to, and did not receive, notice of the application for the appointment of said trustee; Under the provisions of the statute which are now found in sections 83 and 84 of the Real Property Law (chap. 547, Laws of 1896), James Appleby and Walter Appleby had an absolute right to sell their interests in the estate of their father. Section 87 of said law, referred to by counsel for the defendant, refers to an entirely different case from the one at bar, and must be read in connection with sections 85 and 86. The objection made by the purchaser, that the heirs' and next of kin of James Appleby and Walter A. Appleby were not notified of the application for the appointment of the trustee, is, in my opinion, untenable, because they had no interest in the estate at the time of the application, and have no interest now. *Third.*The third objection is that the beneficiaries under the will of William Appleby had so acted with the property as to destroy the trust created by the will. One answer to this objection is that when *408Joseph C. Appleby bought all the right, title and interest of Walter Appleby in the estate of William Appleby, and also bought at foreclosure all the right, title and interest of James Appleby, he did not go into possession of the property as purchaser, or claim the right to collect three-quarters of the rent. The fact is that, at the death of William Appleby, his executor, James A. Appleby, went into possession of the property, collected the rents of the same and accounted before the Surrogate’s Court up to the time of his discharge, October 23, 1878. Another answer is that the Appellate Division has decided that the title to this estate was in the original trastees named in the will, and that upon their death the duty was devolved upon the Supreme Court of appointing a trustee to carry out the provisions of such will, and this has been done. Prior to this decision, representatives of William Appleby were in possession of the premises, collected all the rents, accounted to the surrogate and distributed the money in accordance with the decree of the surrogate. Therefore, William Appleby or his representatives have always been in possession of the property since the same was purchased by William Appleby in 1827. *Fourth.*The fourth objection is that the difference of five inches, which defendant claims the lot was short, reduced the value of it by the sum of $6,000. This point is not discussed by defendant’s counsel in his brief, but, as I understand it, this objection depends upon the objection above noticed, that the trustees could not convey the property which they offered to sell, and as that objection has been overruled, this must, be also. I have not been furnished with a copy of the stenographer’s minutes, but, as I remember the testimony given on the trial, the preponderance of evidence was in favor of the claim made by the plaintiff, that, even if there were a shortage of five inches, it would not materially decrease the market value of the property. Some other objections are raised on behalf of the defendant, but they do not seem to me to be of sufficient importance to require that they should be discussed in this opinion. The plaintiff is entitled to judgment, as prayed for in the complaint, requiring the defendant to complete his purchase.

Judgment for plaintiff.