Jonathan Thompson, an Infant over Fourteen Years of Age, by Samuel T. Cushing, his Guardian ad Litem, Appellant, v. Henry Hart and Others, Respondents, Jane Remsen Thompson, the Younger, and Elizabeth Remsen Thompson, by Samuel Phillips Savage, their Guardian ad Litem, Appellants, Impleaded with Others

Jonathan Thompson, an Infant over Fourteen Years of Age, by Samuel T. Cushing, his Guardian ad Litem, Appellant, v. Henry Hart and Others, Respondents, Jane Remsen Thompson, the Younger, and Elizabeth Remsen Thompson, by Samuel Phillips Savage, their Guardian ad Litem, Appellants, Impleaded with Others. ~Witt—equitable conversion of real, into personal property — right of an infant to maintain an action for partition. The will of a testator provided: “ Third: All the rest, residue and remainder of my estate, * * * I give, devise- and bequeath unto my executors hereinafter named and the survivors and survivor of them, upon the trusts, and to and for the uses and purposes following, that is to say: “1st. In trust, to divide the same into five equal parts or shares, and to allot to my children, Robert George Remsen, Charles Remsen, Jane, wife of Joseph T. Thompson, Elizabeth Remsen, and Sarah, wife of William Manice, each one of said five parts or shares. “ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the case of my son Robert George Remsen the net annual income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support for and during his life, and in the case of my other son Charles, and of my daughters, to pay over to them respectively the net annual income of the share or part allotted to them, and on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters, including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita and not per stirpes." Another provision authorized the trustees “to sell and convey any real estate held by them under the provisions of this will,” and a subsequent provision authorized them “ to partition any lands or real estate * * * (and) to sell all or any part of the estate, real and personal, which I shall own at my decease or which my said executors may acquire under the provisions of this my will.” The testator’s estate consisted of over $3,300,000 in personalty and twenty-eight pieces of real estate, and an undivided interest in other pieces of real property. All of the cestuis que irustent survived the testator, who was a widower. Robert George Remsen subsequently died intestate, unmarried and without issue. Held, upon a consideration of the character and amount of the testator’s property, and of the fact that in creating the trust the testator used the words, “ I give, devise and bequeath,” and in directing the distribution of the trust property used the words, “ convey, pay over and distribute,” and of the further fact that the trustees had authority to invest in real estate, and that there was no . mandatory direction to sell the real estate, the will did not effect an equitable conversion of the real into personal property; That upon the death of Robert George Remsen the trust created for his benefit terminated and the children of his surviving brothers and sisters became seized in fee as tenants in common of undivided interests in the real estate constituting part of Robert’s share; That an infant child of one of the testator’s surviving children, claiming a share in fee because of Robert George Remsen’s death, was .entitled, with the sanction of the court, to maintain an action to partition the said real estate, but that the court might, in determining whether to direct a compulsory partition, take into consideration the fact that no demand had been made upon the trustees for the execution of the power of sale vested in them. Appeal by the plaintiff, Jonathan Thompson, an infant over fourteen years of age, by Samuel Ti Cushing, his guardian ad litem, and " by the defendants Jane Remsen Thompson, the younger^ and Elizabeth Remsen Thompson, by Samuel Phillips Savage, their guardian ad litem, from a judgment of the Supreme Court in favor of the defendants, Henry Hart and others, entered in the office of the clerk of the county of New York on the 4th day of January 1901, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint. The action was brought for the partition of three tracts of land with adjacent water front, situated within the blocks bounded by Fourth avenue, One Hundred and Twenty-ninth street, One Hundred and Thirty-first street and the Harlem river. Before the death of William Remsen this property belonged one-third to him and two-thirds to the defendant Henry Hart. William Remsen died in 1895, .leaving a last will and testament which was duly proved and admitted to probate, the important parts of which are as follows : After making certain specific bequests the testament provides : “ Thwd. All the rest, residue and remainder of my estate, both real and personal, of whatsoever kind or nature, and wheresoever situate, of which I may die seized or possessed, or be .in any way entitled to, and whether held by me solely, or in common with others, I give, devise and bequeath unto my executors hereinafter named and the survivors and survivor of them, upon the trusts, and to and for the-uses and purposes following, that is to say: “ 1st. In trust, to divide the same into five equal parts or shares, and to allot to my children, Robert George Remsen, Charles Rem-sen, Jane wife of Joseph T. Thompson, Elizabeth Remsen, and Sarah wife of William Manice, each, one of said five parts or shares. “ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the cáse of my son Robert George Remsen the net annual income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support, for and during his life, and in the case of my other son Charles, and of my daughters, to pay over to them respectively the net annual income of the share or part allotted to them, and on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita, and not per sUrpesP By the 4th clause of the will the trustees of the several shares are given power to “ put, place, invest and keep the principal of each share,” and to “ improve, alter, repair and rebuild any of the real estate held by them under the provisions of this will; ” to lease any of the real estate for terms not exceeding twenty-one years, and at any time during the continuance of the trusts “ to ■ sell and convey any real estate held by them under the provisions of this will, or purchased by them, on such terms and conditions and either wholly for cash or partly for cash and partly on credit, and to give good and sufficient deeds of conveyance therefor.” By the 5th clause of the will each of the children to whom a 'part or share was given was authorized to dispose of the same by will to and among his or her lawful issue, if any, and in default of such issue then to and among his or her surviving sisters and brothers, and the lawful issue of any deceased brother.or sister mentioned in the 3d clause. By the 6tli clause it is provided that, in case of the death of either or any of the sons or daughters mentioned in the 3d clause before the death of the testator, the part or share of the child so dying was to be conveyed, paid over and distributed to the lawful issue of such child, and failing such issue, then to the surviving brothers and sisters of the child so dying, including the children then living of any deceased brother or sister mentioned in the 3d clause, per capita and not per stirpes. • The 7th clause is as follows: “ Seventh. Por-the more convenient discharge of the duties herein imposed upon my executors, I authorize and empower them or such of them as shall act, and the survivors and survivor of them, to compromise, compound, settle and adjust by arbitration, purchase or otherwise according to their discretion, all accounts, contracts, agreements, claims, demands, suits at law or in equity and controversies in favor of, or against or belonging or relating to me or to my estate, to make all payments necessary therefor out of any funds in their hands, to partition any lands or real estate which I may hold solely or in common with others either by voluntary deeds or by means of actions or other proceedings instituted for that jturpose, to exchange lands and to purchase any outstanding leases, to lease or demise all or any part of the real estate which I shall own at my decease or which they may acquire under the provisions of this my will on such terms and for such rents as they shall deem most advantageous and to renew all or any leases-thereof, to sell all or any part of the estate, real and personal, which I shall own at my decease or which my said executors may acquire under the provisions of this my will, at such times and on such terms and in such manner as in their discretion shall seem best and either for cash or partly for cash and partly for credit to be secured by bond and mortgage thereon, and to give good and sufficient deeds of conveyance therefor.” He then nominated and appointed his son Charles and his sons-in-law William Manice and Joseph T. Thompson to be the executors and trustees under the will. Besides the undivided interest in the land sought to be partitioned in this action, which is substantially unimproved and unproductive, the testator left a personal estate valued at more than $3,300,000 ; twenty-eight separate pieces of improved and unincumbered real estate in Manhattan, and an undivided two-thirds interest in fourteen other parcels of improved real estate in that borough. At the time of his death the testator was a widower, and his sons, Robert George Remsen and Charles Remsen, and the three daughters, Jane R. Thompson, Elizabeth Remsen and Sarah Manice, survived him. Robert G. Remsen, the son mentioned in the 3d clause of the will, died in January, 1898, intestate, without issue and unmarried. Charles Remsen and William Manice qualified as executors and assumed the execution of the trusts created for the testator’s children, Robert, Charles, Elizabeth and Sarah, but resigned the trust for Mrs. Thompson. Joseph T. Thompson renounced his executor-ship, and the United States Trust Company of New York was appointed cotrustee with him of Mrs. Thompson’s part or share of the trust estate. The plaintiff, a son of Jane R. Thompson, one of the eestuis que trust under the will in question, brings this action for partition, claiming that upon the death of Robert G. Remsen an undivided one-fifteenth share or interest in the premises in question thereupon passed to the children of his brothers and sisters then living, by virtue of the 2d paragraph of the 3d clause of the will. At the time of Robert’s death there were eight of the grandchildren of testator living, one of whom, Elizabeth Remsen the younger, was born after the death of the .testator. The trial court held and decided that the plaintiff had no such interest in the property described in the complaint as entitled him to maintain an action for partition, and, therefore, dismissed the complaint. Judgment was entered accordingly, and from such judgment appeals were taken by the plaintiff and by the defendants Jane Remsen Thompson the younger and Elizabeth Remsen Thompson. Edward W. Sheldon, for the plaintiff, appellant. Samuel Phillips Sa/oa^e, for the infant defendants, appellants. John M. Perry, for the executors, respondents. Pa/oid B. Ogden, for the infant defendants, respondents. Everett V. Abbot, for Charles Remsen and others, defendants, respondents. Thomas P. Bambaut, for Elizabeth Remsen, defendant, respondent. Oratz Nathan, for Henry Hart, defendant, respondent. [MAJORITY — Hatch, J.:] Hatch, J.: In arriving at a proper construction of this will I purpose, first, to examine the same and ascertain the rights of the parties thereunder upon the assumption that the real property devised passed thereby, as such, and that its character was not changed by the terms of the will. This necessarily involves a construction of the power and estates in trust created by the will. ' By the 3d clause of the will, after devising and bequeathing the residuary estate to his executors, in trust, the testator provided as follows: “ 1st. In trust, to divide * * * and to allof to my children * * * each, one of said five parts or shares.” This provision, standing alonej creates a power in trust, to be exercised in connection with the estate in trust created by the preceding paragraph; By the succeeding paragraph a limitation is placed upon the duration of the trust estates, as follows: “ 2nd. And as to each of such parts or shares to continue seized of the same for and during the life of the child to whom such part or share is allotted upon the trust, to collect and receive the rents, issues, profits, dividends, interest moneys and income arising therefrom, and after paying all the taxes, assessments, repairs, charges, costs and expenses thereon, to apply in the case of my son Robert George Remsen the net annual ■ income arising from the part or share allotted to my said son Robert George Remsen to his use, maintenance and support, for and during his life, and in, the case of my other son Charles, and of my daughters, to pay over to them respectively the net annual income of the share or part allotted to them.” This provision clearly cannot be construed as devising to the children mentioned any estate or inter-, est in the real property. A valid express trust is created for their benefit, and the whole legal estate is vested in the trustees, subject to the execution of the trust, performance of which may be enforced by the said children. (Real Prop. Law [Laws of 1896, chap. 547], §§ 76, 80.) The trust estates were limited, however, to the period of the life of each child to whom a share or part was to be allotted. Therefore, upon the death of Robert George Remsen, the trust estate created for the period of his life would terminate; and the provision of the will is, “ on the death of each of the children mentioned in this third clause of my will, to convey, pay over and distribute the whole capital of the part or share allotted to the child so dying, with all accumulations thereof, to and among the lawful issue, if any, of such deceased child, and if such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers and sisters, including the children then living of any deceased brother or sister mentioned in this third clause of my will per capita and not per stirpes.” Treating this as a devise of remainders over to grandchildren, as we think it must be treated, the trust estate for the life of Robert having terminated with his death, intestate and without issue, the grandchildren became seized in fee of undivided interests in Robert’s share. This gave them an estate in fee as tenants in common of Robert’s undivided interest in the land; and by virtue of the express provisions of the Code of Civil Procedure (§ 1532), they had the legal right to maintain an action of partition, subject, only, to the qualification contained in section 1534 of the Code, where the right to partition in the case of infants is made to depend upon the conseút of the surrogate, and the court must be satisfied that the interests of -the infant will be promoted by a judgment awarding partition. This view is supported by authority. (Campbell v. Stokes, 142 N. Y. 23.) The terms of the will in that case did not vest the legal title to the estate in the trustees. The power to be exercised by them was to divide and allot, and to convey, pay over and deliver upon the death of the child. In the present case, the devise of the estate is to the trustees, and not at all to the children; but by the 2d paragraph of the 3d clause a limitation is placed upon the estate, terminating the same on the death of., the child. And by virtue of this provision of the will,, the estate vested as to such share immediately upon the death of the child, when the estate of the trustees terminated. This condition makes the two cases exactly parallel, so far as the legal rights are concerned. As it was held that the grandchildren in the Campbell case were necessary parties to an action in partition, because the estate had vested in them, so here it must be held that the plaintiff, with the sanction of the court, is entitled to maintain an action of .partition for the same reasons. This case, therefore, is a direct and decisive authority upon the question. ■ Nothing which appears in Henderson v. Henderson (113 N. Y. 1) is contrary to- this rule. That was an action, for the construction of a will. In that case, as here, there was an outstanding power of sale which had never been executed. . The estate in the children at the time the action was brought was an estate in remainder only; and the court properly held that, such being the-nature of the estate, compulsory partition could not be had, as there' was still an outstanding power of sale in the executor, and by the terms of the will it was the intent of the testator that his estate should be partitioned by the trustee and that, as the estate was simply one in remainder, compulsory partition and sale of the land could not be had. This case was correctly decided on principle, as. such estates may be entirely unequal, and partition, if ordered, might be to the advantage of one and the disadvantage of another.. Besides, as between the owners of such estates, power to direct a sale of the premises is withheld, unless upon the consent of the. holder of the particular estate, evidenced in writing. (Code Civ. Proc. § 1533 ; Levy v. Levy, 79 Hun, 290 ; Scheu v. Lehning, 31 id. 183.) While it may be true that the remaindermen may, under certain circumstances, maintain partition, where actual partition may be had without prejudice to the holder of the particular estate or any of the remaindermen, yet it is evident that it is subject to quite different rules from those which obtain as to estates in fee in possession. In the present case, the action is brought by the plaintiff as owner in fee of an undivided interest in common with other like owners; and as to such cases, except as qualified by the power of the court to withhold actuaT partition or sale in case of infants, the right of partition is absolute. The Henderson case, therefore, cannot be regarded as an authority defeating the right to maintain this action. It is quite possible that although an estate in fee is vested in the plaintiff, it is still subject to the outstanding power of sale in the executors. But such fact cannot be held to defeat the right of the plaintiff to maintain partition in a proper case, for by the provisions of the Code he is vested with such an estate as gives him the absolute right to maintain the action. Undoubtedly the power exists in the plaintiff to compel the execution by the executors of the outstanding power of sale, and an action could be maintained for that purpose (Dana v. Murray, 122 N. Y. 604), but such right is evidently not exclusive. It is a fact, however, which the court may consider, bearing upon the question as to whether or not partition ought to be awarded. We have no doubt but that the court may consider the existence of the outstanding power of sale, and that the parties have never requested the trustees to exercise the power before resorting to the action of partition. While a person entitled to partition may maintain the action, yet the court, in determining whether partition will be awarded, may take all these facts into consideration and conclude therefrom that the demand ought to be made upon the trustees in the first instance and they be given an opportunity to comply therewith before compulsory partition will be awarded. In the present case the court has denied partition- for the reason that the plaintiff, under the provisions of the will, had no such title as authorized him to maintain such action. Its conclusion in this respect cannot be sustained. The court did not assume to pass upon or determine whether it was for the best interests of the infant that a partition or sale of the premises should be had, or whether demand for division and allotment should have been made of the executors before resorting to an action. The plaintiff was entitled to the judgment of the court upon those questions, and if the plaintiff took the real property as such, the judgment must be reversed and the case remitted to the trial court for disposition of such questions. It is claimed, however, that under the will in question an equitable conversion of the real property into personalty has been worked by the terms of the will, and that such was the intent of the testator. It is quite easy to construct an argument -in support of this view, and the terms of the will in many respects lend much color to the claim. But a consideration of the whole scope of the will and the language which has been used leads us to the conclusion that it was .not the intent of the testator to work a conversion of his real property. There is no mandatory direction in the will to sell the real property; and while undoubtedly it is not necessary, in order to work an equitable conversion, that there should be an imperative direction to sell, yet it must appear that a conversion of the real property is necessary to accomplish the purpose intended by the general scheme of the will before the permissive authority to sell will be construed as a mandatory direction. (Lent v. Howard, 89 N. Y. 169; Salisbury v. Slade, 160 id. 278.) We do not think that the terms of this will or the character of the property disposed of makes it necessary to convert the real estate into personalty in order to carry out the intent of the testator. While it is true that there are a large number of separate pieces of real property, some of which were owned solély by the testator in fee and in others of which he owned an Undivided interest with other persons, yet it also appears that the personal estate amounted to $3,000,000 and upwards, and it is quite probable that the executors and trustees could make the allotment provided for in the will in both real and personal property without the necessity of converting the whole of the real estate into money, and certainly, when taken in connection with the ample powers which are given to sell the real estate, it; is far from being impossible to conclude that the ¡allotment of the entire property could be made in specie and fulfill to the letter the terms of the will. Under such circumstances it is readily seen that there is no such blending of the entire estate as to create a common fund. On the contrary, the character of the property can be kept entirely separate and the allotment made as the will provides. In addition to this, by the express provisions of the will, the executors and trustees: are authorized to invest the whole or any part of the estate in real property as well as' in personal securities. If the executors and trustees, in the discharge of their duties, invested the whole of the estate in real property, they would comply with the provisions of the will and evidently fulfill the intent of the testator. If the directions in this respect were followed by the executors and trustees and the whole of the estate invested in real property, the allotment could still be made and the scheme of the will be fulfilled. Under such circumstances it cannot be doubted but that the persons entitled would take the estate as real property, and no one could question but that compliance would be had with the terms of the will. In this connection the language of the will, when the time of distribution arrives, is “ to convey, pay over and distributed’ Manifestly the word “ convey ” is appropriate to the transfer of real property and entirely inappropriate to the transfer of personal estate. And while the thing to be conveyed is capital and accumulations, yet inasmuch as the shares to be distributed under the allotment may consist of real or personal property, or both, the share is not inaptly designated as capital and accumulations. It is evident that the word “ capital ” is here used to designate the shares and not to characterize the estate directed to be conveyed. The word “ accumulations ” is quite appropriate, as it is apt to describe the rents, issues and profits which may arise from the whole estate in the course of the administration of the trust. This language in connection with the thing to be paid over, it may be conceded, does not accurately and technically describe real property ; but when the words are considered with the language directing distribution and the whole scheme of the will; it is readily apparent that no violence is done in holding that the words themselves embrace either real or' personal property, or both. We have examined with some care all of the authorities which have been cited by the respective counsel in support of the contention that the will worked an equitable conversion of the real estate into personalty. It is not necessary that we discuss each one in detail. Probably the strongest case in support of the claim is that of Delafield v. Barlow (107 N. Y. 535). This was a border case, and while the court held that an equitable conversion was worked by the terms of the will then under consideration, yet they arrived at such conclusion with doubt and hesitation. In that case as here there was the devise of both real and personal property with a direction to allot into shares. The power of sale was not mandatory but permissive* and in these respects the cases are quite parallel. In other respects there is a radical difference. In the Delafield case the language of "gift is “ I give and bequeath; ” and the court held that this language was strictly applicable to a bequest of personal property. In the present case the language of the will is “ I give, devise and bequeath ” — language which excludes the idea that personal property only was to pass, and which is peculiarly appropriate to the character of the property which in fact passed to the trustees. In the Delafield case the language of distribution was “ pay over, transfer and deliver”—language which finds proper application only when a bequest of personal estate is made. In the present will the'language of distribution is “convey, pay over and distribute.” Such language is apt and appropriate, to transfer both real and personal property. Aside from this difference in language, however, there is contained in the present will a direction to the executors and trustees to invest the whole or any part of the estate in real property, and' as we have before pointed out, if such direction be followed, the whole of the estate might be conveyed as real property to those entitled to take, and the will in its entirety be fulfilled. It seems clear, therefore, that the Delafield case, instead of being an authority in favor of the contention that an equitable conversion is worked, when analyzed, becomes a distinct authority opposed thereto. It cannot be doubted that had the words of gift and- the direction to distribute in the Delafield case been “ devise ” and “ convey,” the decision would have gone the other way. While further force is added in the present case by the direction to invest in real property. No case, we think, can be •found in this jurisdiction which adds any strength to the doctrine ■laid, down in the Delajield case. It is, therefore, not necessary to refer to the numerous discussions which have been had in other •cases. Isolated portions, of this will may be laid hold of, and color be lent to the claim that an equitable conversion was intended and worked thereby, but when the whole scheme of the will is examined ■it seems clear that an equitable conversion was neither worked nor ■intended. ■ These views lead us to the conclusion that there was fib conversion of this estate into personalty. So far as the costs and allowances are concerned, which have been awarded against the plaintiff, we think that they ought not to be permitted to stand. The executors and trustees have failed to execute this Will in accordance with its terms, and the plaintiff was clearly justified in making the attempt in this action to assert his-rights. It follows that the judgment should be reversed and a new trial granted, with costs to all parties payable' out of the estate. Yan Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred. Judgment reversed, new trial granted, costs to all parties payable out of the estate.