#### KENDRICK BLANCHARD, Appellant, *v.*LUCRETIA BLANCHARD and others, Respondents.

*Will—powen' of sale contained in, not to be exercised during continuance of two limes in being*— *when valid*— *Suspension of power of alienation.*

Defendant’s testator, by his will, devised to his wife and two youngest children all his personal property, and the use of a farm until June 29,1890, and directed his executor, within two years from that date, to sell the farm and divide the proceeds among certain persons named in the will. *Held*(1), that the widow and children took an estate for years in the farm, and that the remainder therein vested in the residuary devisees named in the will, subject to the execution of the power of sale; (2), that the power vested in the executor, being a mere naked power of sale, did not suspend the power of alienation, and was valid.

*Beekman*v. *Bonsor*(23 N. Y., 298) limited.

The will provided that “the personal property and use of said farm to be under the exclusive control and management of my wife, without interference by any person whatever.” *Held,*that á valid power in trust was thereby created in the wife.

Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

This action was brought by the plaintiff for a partition of the premises described in the complaint, upon the ground that the apparent devise thereof by Reuben Blanchard, deceased, was void.

The testator died on the 10th day of May, 1873, leaving a will of which the following are the material portions :

*“*Second. I give and bequeath to my beloved wife, Lucretia, and my two youngest children, Emma Jane Blanchard arid Reuben Earle Blanchard, all of my personal property, also the use of my home farm where I now reside, on lot number fifty-five, in the town *288of Victory, county of Cayuga, consisting of about 209 acres of land, until the 29th day of June, 1890 — the personal property and use of said farm to be under the exclusive control and management of my wife, without interference by any person whatever, which is to be received by her in lieu of dower.”

“ Fourth. I order and direct that within two years after, the 29th day of June, 1890, my said executor shall sell my home farm where I now reside, on lot number fifty-five, in the town of Victory, consisting of about 209 acres of land.” * * * The testator then directed the proceeds arising from the sale to be paid over to certain persons named by him.

“ Lastly. I order and direct that all of the rest and residue and remainder of my property not hereinbefore disposed of, be divided among my children and grandchildren hereinbefore named, in proportion to the several sums of money hereinbefore bequeathed to them.”

The justice before whom the case was tried, held that the power of sale given to the executor worked an illegal suspension of the power of alienation, and was void.

Gilbert, J.:

We *agree*that the judgment below should be affirmed, but we cannot concur with the learned judge, in the exposition which he gave to the will. If the reasons for his judgment appeared therein, this general declaration might suffice; but as they do not, it is.proper, in order to prevent future litigation, to give.very briefly our views respecting the legal effect of the will. We are of opinion that all the testator’s gifts are valid. The interest in the *“*home farm,” devised to his wife and two minor children by the second clause, is an estate for years, and is denominated in law a chattel real.* The distinction that once prevailed between the devise of. the use of a chattel interest, and the devise of such interest itself, is now practically exploded.† Such an estate is treated as personal property in every respect. In case of the' death of the owner, it goes to the executor, and not to the heir at law.‡ These devisees, therefore, took the gift to them as tenants in common, *289notwithstanding it is one of personal property; for it is provided by statute, that every estate devised to one or more persons shall be a tenancy in common, unless expressly declared to be in joint tenancy,* and that provision embraces all estates in land, whatever may be the duration of them. The remark of Surrogate Bkadfokd on this subject, in *Putnam*v. Putnam,† was too broad.

We think the words, “the personal property and the use of the farm, to be under the exclusive control and management of my wife,” are sufficient to create a valid power in trust. No precise form of words is necessary to create such a power. Any words, however informal, which clearly indicate an intention to give a power, are sufficient for that purpose; and it may be created to do any act which the grantor himself might lawfully perform. *‡***It is not a trust, for two reasons: First, because the statute on this subject requires the legal estate to be vested in the trustee^ in order to create a valid trust; and, second, it does not authorize such a trust. But the object is protected as a power in trust, by the fifty-eighth section of the same statute. §

The learned judge at Special Term expressed the opinion that the power of sale of the" “ home farm ” given to the executor,- was void for the reason that the postponement of the execution thereof worked an illegal suspension of the power of alienation. That is a very important practical question. Powers of sale, to be executed after the lapse of a period which may extend beyond two lives in being, have been commonly inserted in wills of real estate, and if it should turn out that such powers are illegal, many wills will be invalidated. We are of opinion that the power in this case, being a naked power of sale, did not suspend the power of alienation. It is quite manifest that no estate or interest was devised to the executor. The whole estate of the testator, excepting the term given to the wife and minor children, would have descended, immediately upon his death, to, and vested in his heirs, but for the last clause in the will. By that clause it was devised to his children and grandchildren, as residuary devisees, subject to the term devised to the widow and minor children, and subject also to the execution of *290the power after the termination of their estate for years.* The power conferred upon the executor was no more than a hare authority to sell the lands, an act expressly authorized by the statute of powers, whether the act is tó be done in the lifetime of the grantor, or after his death.† There is not to he found in that statute any restriction respecting the time within which a power must be executed, although it does provide a limitation of the period during which the absolute right of alienation may be suspended by *an instrument in execution*of a *power.*‡ A power of sale is not an estate or interest in land. The provisions of the statute on this subject are explicit. It requires an absolute power of disposition, and defines such a power to be one by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. In such a case the grantee takes a fee, subject to any future estate limited thereon, but absolute in respect to creditors and purchasers. § Even a devise of real estate, itself, to an executor to sell, without an authority to receive the rents and profits, vests no estate in him. || An instrument in execution of a power is not regarded as an alienation by the grantee, but as the act of the grantor. Before execution, the power is a lien or charge upon the lands, ¶ and has no greater effect upon the interests of heirs or devisees than a mortgage made by the testator, payable at the time fixed for the execution of the power would have had. No one would question the validity of a mortgage given by a testator to secure the payment of a sum of money twenty years after his death, because it contained the usual power of sale. No doubt such a power in either case obstructs the sale or other disposition of lands by the owner, but not by reason of the time limited for the exercise of the power. It would ordinarily have the same effect if no restriction as to time were imposed; hut the absolute right of alienation of the fee is not affected thereby. In the case before-us, the residuary devisees took an estate in fee, which, notwithstanding the incumbrance of the power, is neither defeasible nor conditional, *291and they may alienate it at pleasure. A conveyance from them and the devisees of the term would pass the whole estate. The testator might have made the devise to the residuary devisees in a form which would have given them an estate lasting only until the execution of the power, as there will be a short interval between the end of the term given to the widow and minor children, and the time within which the power must be executed. There being more than two residuary devisees, such a devise would have been illegal. The practical result of a devise of the fee incumbered by a power, may, in some cases, be the same; nevertheless, the latter is legal. The statute does not aim to do anything more than to prevent the inalienability of estates beyond the prescribed limit. It has not sought to limit the duration of a lien or incumbrance thereon. The only provisions on this subject are the fourteenth and fifteenth sections of the statute relating to the creation and division of estates. * The fourteenth section avoids *futwre*estates, which suspend the power of alienation. It is manifest that this section does not embrace the power in this case, because that does not create a future, or any other estate. The fifteenth section avoids *limitations*and *conditions*only. *“*Conditions ” and *“*limitations ” are terms well understood in law, A power is neither one nor the other. And, as before intimated, the residuary devisees in .this case, who are the beneficiaries under the power, may at' once alienate all the estate they got under the will. They can alienate the fee in the land, subject to the power, and they may sell their respective shares in the proceeds of the sale which shall be made in execution of the power. The statute on this subject expressly provides that limitations of future or contingent interests in personal property, shall be subject to the rules prescribed in relation to future estates in lands, and those rules authorize the alienation of expectant estates, † How then, and of what, is there a suspension of the power of alienation ? We are not aware of any adjudication in conflict with the views on this subject, which we have now expressed. In *Beekman*v. *Bonsor,**‡***Comstock, J., remarked, that the power in *292trust in that case would have been a lawful one, if the postponement of its execution for an absolute period of time did not suspend the power of alienation in a manner which the statute did not permit. This however was *obiter*dictum, and is hardly reconcilable with the decision of the same judge, in *Downing*v. Marshall, * for, in the latter case, a power in trust, the execution of which was postponed until after two lives in being, was upheld.

Whether we regard the power of sale, therefore, as intended to effect an out and out conversion of the realty into personalty, or as a power in trust of real estate, it is in our opinion valid.

There can be no question as to the validity of the direction contained in the power, respecting the disposition of the proceeds of the sale.†

We have assumed that the birth of the posthumous child was not under circumstances to work a revocation of the will, according to the provision of the Revised Statutes on that subject, ‡

For the reasons stated, the judgment must be affirmed.

Judgment affirmed, with costs.

*

 1 R. S., 722, § 5; 1 Wash. Real Prop., 310.

†

 4 Kent Com., 269; Fearne on Rem., 407.

‡

**3 Kent Com., 342.

*

 1 R. S., 727, § 44.

†

4 Brad., 309.

‡

 1 R. S., 732, § 74.

§

 1 R. S., 728, §§ 49, 55; id., 729, § 58 ; Downing v. Marshall, 23 N. Y., 375*et seq.*

*

 1R. S., 729, § 59.

†

 1 R. S., 732, § 74.

‡

*1*R. S., 737, § 128.

§

 1 R. S., 732, 733, §§ 82-85.

||

 1 R. S., 729, § 56; Germond v. Jones, 2 Hill, 573; Downing v. Marshall, 23 N. Y., 366.

¶

 R. S., 735, § 107.

*

1 R. S., 723,

†

 R. S., 773, § 2; id., 722, § 9, 725, § 35 ; Lawrence v. Bayard, 7 Paige, 76; Sheriden v. House, 4 Keyes, 588.

‡

23 N. Y., 317.

*

23 N. Y., 366.

†

 Crittenden v. Fairchild, 41 N. Y., 289 ; Kinnier v. Rogers, 42 id., 531; Kane v. Gott, 24 Wend., 641.

‡

 2 R. S., 64, § 43.