GRAHAM US. DEWITT.

made until after the mortgagor's death, as realty. (Wright v. Rose, 2 Sim. & Stu., 323; Brown v. Bigg, 7 Vesey, 279; Polley v.Seymour, 2 Young & Coll., 708; In re Evans, 2 Cromp., M., & R., 206; Biggs v. Andrews, 5 Sim., 424.) And where there is a conveyance in trust with a power of sale, if the trustees sell in the life-time of the party entitled, and have the money in hand at the time of his death, it would belong to his personal representatives. (Griffith v. Ricketts, 7 Hare, 299; Story's Eq. Jur., § 790.) The reason is obvious in cases where the trustee has no discretion, why his failure to comply with the directions of the deed or will, should not be permitted to alter the character of the property, or change the rule of succession. But if a discretion be given, then the conversion having been left to the judgment of the trustee, the nature of the property depends upon the exercise of that discretion. The testator, or grantor, in case of a will or deed, has given a power to change the nature of the subject matter; and as that power has been exercised or has not been exercised, at the death of the party in interest, so is the succession to be determined according to the character of the subject in its then existing form. The power relates back to the instrument by which it was given, and by relation is the act of the grantor. The descent takes effect according to the nature of the subject when the succession devolves. If a testator devise lands, and give a power to his executors to sell, the devisees take subject to the execution of the power. If a devisee die before the power be executed, the estate devolves as land, but if after, it devolves as personalty. The same rule applies to a grant in trust, with a power of sale. The only exception existing, is in cases of the sale of lands of infants.

But in the present instance, I think the grantors in the trust deed under which these lands have been sold, have provided expressly as to the disposition of the proceeds of the lands, under that clause of the deed which directs the fund to be divided "among the parties of the first part, their executors, administrators, or assigns." This must be carried out as a special direction of the deed, and a substantial part

GRAHAM VS. DEWITT.

of the trust. (Van vs. Barnett, 19 Vesey, 102.) It thus being ascertained that the property in the hands of the deceased trustee was personal estate, he was in respect to that fund a creditor of the cestui que trusts, or their representatives, and was bound to divide it among them on the decease of the life-tenant. He mingled the funds with his own, so that on his decease, his estate remains indebted to the trust. On the death of the life-tenant, the trustee, not having divided the fund among the parties entitled, and the substance of the trust having terminated except simply the payment to the parties interested, it seems to me to fall within the jurisdiction of the Surrogate to order his executor to make that payment. There is no occasion for the appointment of a new trustee. That is not necessary to make title to the trust fund, for that has not been kept separately. The active branch of the trust has ceased, and nothing remains but to pay the several parties entitled. It is true the obligation having grown out of a trust, the demand is in the nature of an equitable debt; but the Surrogate has jurisdiction to examine, settle, and order the payment of equitable as well as legal claims. (Jumel vs. Jumel, 7 Paige, 591; Gardner vs. Gardner, ibid., 112.) The executor on the final accounting can have all the parties in interest before the Court, the amount of the entire fund ascertained, and a proper distribution among the cestui que trusts directed, and this will exonerate him from further liability.

SEYMOUR VS. BUTLER.

SEYMOUR US. BUTLER.

In the matter of the Estate of CHARLES SEYMOUR, deceased.

A LEGACY to the widow in lieu of dower, carries interest from the testator's decease; and where there has been a delay in the probate of the will and the grant of letters, and the legatee needs an advance for maintenance, the Surrogate, under the authority conferred on him by the statute, will order payment of such proportion of the legacy as may be necessary, even within a year from the issuing of letters, provided there is one-third more assets than will be sufficient to pay the debts, and provided also a satisfactory bond of indemnity be given

WM. C FREEMAN, for Legatee.
JAMES GRIDLEY, for Executor.

THE SURROGATE.-By the testator's will the widow was given a legacy of $3000 in lieu of dower, and being without other means of support, she now applies for an order to compel the executors to pay, notwithstanding less than four months have elapsed since probate was granted. A bequest in lieu of dower carries interest from the testator's decease. The testator died October 29, 1853, and the will was not proved until December 5, 1854; so that it would seem, under all the circumstances, to be a hardship for the widow to be compelled to wait a year from the grant of letters before receiving her legacy. The statute authorizes the Surrogate, before the expiration of a year from the granting of letters, to direct the payment of such portion of a legacy, or distributive share, as may be necessary for the support of the legatee or distributee, provided it appear that there is at least one-third more of assets in the hands of the executor or administrator, than will be sufficient to pay all debts, legacies, and claims then known. (2 R. S., p. 98, §§ 82, 83, 89, 90.) It is the duty of the Surrogate, however, to require a satisfactory VOL. III.-13

M'EWING US. BERTINE.

bond of indemnity before directing any payment, for the purpose of securing the executor or administrator against liability, in case unforeseen demands should come and exhaust the estate. The present case is a proper one for the exercise of the discretion reposed by the act in the Surrogate. The widow has no adequate means of support, and there are abundant assets to pay the debts of the testator so far as they are known, as well as to meet the bequests under the will. On an approved bond of indemnity being filed, therefore, I shall direct the executor to pay the applicant the interest that has accrued on her legacy, from the time of the testator's decease.

MCEWING vs. BERTINE.

In the matter of the Estate of DUNCAN MCEWING, deceased.

THE testator, who was engaged in business as a manufacturer, and owned a cotton mill, after devising to his wife a life-interest in certain lands, gave the remainder of his property to his children, "to be valued," and "to be divided" into a certain number of shares, and "the several divisions" to take place as his sons" severally" attained majority, and his daughters arrived at full age or married. He also provided, that three of his children named should "have the same advantages of education" as the others had enjoyed; and that his cotton mill should be under the direction of his son, and J. D., the profits to be appropriated to the use of the testator's family.-Held, that the devise of the residue was vested in the children on the testator's decease, subject first to the provision for the education of his children, and secondly, to the direction respecting the management of the mill. The children were to be educated at the charge of the estate, and the profits of the factory were to accrue to the benefit of the family, that is, his children, to whom the property had been previously given—the widow having other provisions under the will.

The clause as to the management of the factory is a mere direction how the estate was to be managed until a distribution should be made, and does not vary the interests of the devisees.

Each one of the devisees, on attaining majority, or the daughters on marriage, can demand their shares, and in such case the estate must be closed.

M'EWING US. BERTINE.

SAMUEL D. VANDERHEYDEN, for Devisees.

I. John D. McEwing having attained his majority, is entitled to his share of the estate, and also of the interest of his deceased brother.

II. The business should be closed by the terms of the will, also as a matter of expediency, the net profits on the $60,000 invested in stock, capital, machinery, and buildings, not being over 7 per cent., with all the risks of trade inclusive.

III. The trust, for the conduct of the business, if it was not to terminate upon the majority of the heir, did terminate upon the death of Duncan McEwing, Jr. It was joint and personal in its nature, and not susceptible of the appointment of another in his place.

JAMES H. HEDLEY, for Administrator.

I. The intention of the testator evidently was to have the business of the factory continued after his decease for the support and education of his family, until the youngest child became of age.

II. If the first proposition be true, then the business of the estate cannot be closed and the capital divided until the youngest child attains majority, or dies.

III. John D. McEwing is entitled not to a share of the estate now, but only to a division of the profits of the busi

ness.

IV. The Surrogate is to determine whether, under the will, each heir is entitled to his share of the estate severally to be divided upon attaining majority or marriage.