In the matter of Dekay, 4 Paige Ch. 403

The Chancellor. The petitioner’s counsel is under a mistake in supposing that the property in question is any longer held in trust, so as to give the court any authority or power to appoint a new trustee. It does not distinctly appear whether Mrs. Drake, the original trustee, died before or after the revised statutes went into operation. The ascertainment of that fact, however, cannot be material in this case.

If she died before, the legal estate, and her contingent fee in the beneficial use of the property, descended to her daughter as her sole heir; thus uniting the whole legal and equitable estate in the latter, who now holds it in fee simple. If the mother died since the revised statutes took effect, there was still no trust which could vest in the court of chancery, upon her death, under the sixty-eighth

section of the

article of the revised statutes relative to uses and trusts. The purposes for which the trust was created having ceased, by the union of the estates both of the mother and the daughter in the latter, as the sole heir at law of the former, the estate of the trustee, as such, is at an end, and the daughter is now seised of the whole, in fee. (1 R. S. 730, § 67.) Again; by the forty-seventh

section of the same

article of the revised statutes, (Id. 727,) every person who is entitled to the actual possession of lands, and to the receipt of the rents and profits thereof, in law or in equity, is deemed to have a legal estate therein, commensurate with his beneficial interest in the premises; except in those cases where the estate of the trustee is connected with some power of actual disposition or management. The effect of this provision of the revised statutes is to turn all merely nominal or naked estates in trust in real property, into legal estates, in the persons having the beneficial interest therein.

In the present case, the petitioner, by virtue of his marital rights, has all the power or control over his wife’s property which this court could confer upon him as a substituted trustee. But he cannot sell the estate, so as to give a good title to the purchaser beyond his own life, until she is of full age so as to be able to join in the conveyance. If the petitioner is unable to support his wife, and the income of her estate is not sufficient for that purpose, she must join her husband in an application for the appointment of a special guardian, to sell so much of the property as may be necessary.

But if his only object is to obtain an authority to improve and manage the property, he possesses.that power already.