v. Reed, 11 How. [U. S.] 437; Riggs v. Pursell, 74 N. Y. 370.) If the petition and notice were served as claimed, that service was ineffectual, because made by James W. Stanley, who was a party to the proceeding. (Code Civ. Pro. §§ 425, 433; Ellwood v. Northrup, 106 N. Y. 172, 185.) As James W. Stanley was the sole beneficiary of the trust created by his mother's will, his appointment as trustee was absolutely void, and all his acts under such appointment were also absolutely void. (Craig v. Hone, 2 Edw. Ch. 554; Coster v. Lorillard, 14 Wend. 265; Bundy v. Bundy, 38 N. Y. 410; Wetmore v. Thurlow, 51 N. Y. 344; Wetmore v. Parker, 52 N. Y. 450; Rogers v. Rogers, 111 N. Y. 228; Woodward v. James, 115 N. Y. 346; Rose v. Hatch, 125 N. Y. 427; In re Shipman, 22 N. Y. S. R. 356-261; 3 Birdseye Stat. 3180, § 24; People v. Norton, 9 N. Y. 176; In re Waring, 99 N. Y. 114; In re Van Schoonhoven, 5 Paige, 559; Cruger v. Jones, 18 Barb. 467; Douglas v. Cruger, 80 N. Y. 15; Lent v. Howard, 89 N. Y. 169.) The lien of the mortgage attached only to the life estate created by the will for the life of James W. Stanley, and when, by his death, that estate was terminated, the lien of the mortgage ceased. (3 Birdseye Stat. 2555, § 68, 3179, 3180, §§ 16, 23; Powers v. Bergen, 6 N. Y. 358; 2 Washb. on Real Prop. 560; Healey v. Auston, 25 Miss. 190; Hopkinson v. Demas, 42 N. H. 306; Gardner v. Astor, 3 Johns. Ch. 53; Bundy v. Bundy, 38 N. Y. 410; Stevenson v. Lesley, 70 N. Y. 512; 3 Birdseye Stat. 2561, § 73; 1 Washb. on Real Prop. [5th ed.] 129-132; In re Miller, 1 Tucker, 346, 348; Stillwell v. Doughty, 2 Brad. 312; De Witt v. Cooper, 18 Hun, 67; King v. King, 9 J. & S. 516; Peck v. Sherwood, 65 N. Y. 615; Deraismes v. Deraismes, 72 N. Y. 154; Thomas v. Evans, 105 N. Y. 601; Cairnes v. Chabert, 2 Edw. Ch. 312; Code Civ. Pro. § 2348; Jenkins v. Fahey, 73 N. Y. 355; Dodge y. Stevens, 105 N. Y. 585; Goebel v. Iffla, 48 Hun, 24; In re Clarke, 59 Hun, 557; 128 N. Y. 658; In re Roe, 119 N. Y. 509; In re Conkling, 7 N. Y. S. R. 280; Harvey v. Harvey, 2 P. Wms. 21; Saunders v. Vautier, 4 Beav. 115; Rocke v. Rocke, 9 Beav. 66; Barlow

v. Grant, 1 Vern. 255; In re Bostwick, 4 Johns. Ch. 99; Banks v. Duckenfield, 18 N. Y. 592; Trust Co. v. Roche, 116 N. Y. 120; Scholle v. Scholle, 101 N. Y. 167; U. S. Const. art. 5; N. Y. Const. art. 1, § 6; Wynehamer v. People, 13 N. Y. 378; Embury v. Conner, 3 N. Y. 511, 516, 517; N. Y. & 0. M. R. R. Co. v. Van Horn, 57 N. Y. 473–477; In re D. C. Assn., 66 N. Y. 569–571; Cochran v. Van Surlay, 20 Wend. 365, 373; Douglas v. Cruger, 80 N. Y. 15; Lent v. Howard, 89 N. Y. 169; 136 N. Y. 326.) In the proceeding in which the making of the mortgage was authorized there was neither allegation nor proof showing a necessity for raising money. (Ellwood v. Northrup, 106 N. Y. 172; Riggs v. Pursell, 74 N. Y. 370, 378; Blank v. Blank, 107 N. Y. 91, 95; Smith v. Zalinski, 94 N. Y. 519, 524; Veeder v. Baker, 83 N. Y. 156, 163.) There is no sufficient description, either in the mortgage or in the notes, of the capacity in which James W. Stanley acted to charge the trust estate. (1 Edw. on Bills & Notes, p. 79; Hill v. Bannister, 8 Cow. 31; Barlow v. Myers, 24 Hun, 288; Schmittler v. Simon, 101 N. Y. 554; Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munro, 47 N. Y. 360; Dewitt v. Walton, 9 N. Y. 571; Pumpelly v. Phelps, 40 N. Y. 59.)

William F. Cogswell for respondents. The order of the court, appointing Stanley as trustee in place of Mr. Briggs, deceased, was not void; it may have been improper or erroneous, and one which would have been revoked upon motion or reversed upon appeal, but it was not void. The court had jurisdiction of the subject-matter, probably, by virtue of its inherent power over trusts; certainly by virtue of the statute. (1 R. S. 730, § 71; Rogers v. Rogers, 111 N. Y. 228.) It was competent for the court to authorize the giving of the mortgage, and the same became an incumbrance upon the fee. (1 R. S. 729, § 60; 1 R. S. 730, § 65; Laws of 1886, chap. 257; Harvey v. Harvey, 2 P. Wms. 21; In re Bostwick, 4 Johns. Ch. 99; Trust Co. v. Roche, 116 N. Y. 120; In re Morris, 113 N. Y. 693; 69 Hun, 619.) The plaintiffs were

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

not required to see to the application of the moneys raised upon the mortgage. (1 R. S. 730, §§ 63, 66; Goebel v. Iffla, 48 Hun, 24; Laws of 1882, chap. 275; Laws of 1882, chap. 26, Laws of 1882, chap. 257; Leggett v. Perkins, 19 N. Y. 445; Brevoort v. Grace, 53 N. Y. 245.)

ANDREWS, Ch. J. This appeal presents a question of broader interest than attaches merely to the pecuniary rights of the parties to the litigation. It involves a consideration of the power of the Supreme Court in dealing with the real property of minors, and the extent of its jurisdiction in directing a sale or mortgage of their property. By the will of Elizabeth J. Stanley a trust was created in the real property of which she died seized, during the life of her son, James W. Stanley, for his benefit, with remainder to his children or their descendants living at his death, and in default of such issue to certain other specified devisees. James W. Stanley was unmarried at the death of his mother and the remainder to his children was contingent until the birth of issue. He subsequently married and there were two children of the marriage (the infant defendants) who were living when the mortgage in question was executed. Under the will, the first born child of James W. Stanley took at its birth a vested estate in remainder in the land devised, subject to open and let in afterborn children as they severally came into being, and such vested remainder became a fee simple absolute in the children living at the death of their father. (1 Rev. St. 723, § 13; Moore v. Littel, 41 N. Y. 66; Williamson v. Berry, 8 How. [U. S.] 495.) The estate in the children of James W. Stanley was a legal estate. The estate of the trustee was for the life of James W. Stanley and terminable at his death. The will created two distinct legal estates in the devised property, viz., an estate in the trustee for the life of the beneficiary, with the right of possession and to receive the rents and profits during the continuance of the trust, and an estate in remainder which became vested on the birth of children as before stated. The trustee had no power over the estate in remainder

Opinion of the Court, per ANDREWS, Ch. J.

[Vol. 147.

except such as may have been given him by the will. He could not sell or incumber it or in any way by his own act alter or affect the interests of the remaindermen unless authorized

by the will. The provision of the Statute of Uses and Trusts (1 Rev. St. 729, § 60), declaring that every valid express trust shall vest the whole estate in the trustees, is by settled construction limited to the trust estate, and has no application to future legal estates in lands covered by the trust, to take effect in possession on the termination of the trust. The trus tee in the present case had an estate for the life of James W. Stanley, and it was this estate and this only which vested in the trustee. (Stevenson v. Lesley, 70 N. Y. 512.) The will of Elizabeth J. Stanley conferred on her executor and trustee a power to sell the real estate devised, if deemed by him. advisable so to do for the purpose of investment of the proceeds. It gave him no power to sell the lands for the payment of debts, or for any other than the specified purpose. It conferred no power to mortgage, and it is not claimed nor could it be reasonably contended that the mortgage in question can be sustained as an exercise of the power of sale contained in the will. (Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Bloomer v. Waldron, 3 Hill, 361; Rogers v. Rogers, 111 N. Y. 228.) When, therefore, the application for leave to mortgage the premises in question was made to the court by James W. Stanley, October 15, 1888, the infant defendants were vested with a legal estate in the remainder in the premises, and the trustee had no power under the will to sell or otherwise affect or incumber their estate for the purposes specified in the application.

We shall pass without comment the question urged upon us, that the appointment of James W. Stanley, the sole beneficiary of the trust, as the trustee, was unauthorized and void. We entertain some doubt whether a trust is void in its inception where the instrument creating the trust appoints the sole beneficiary the trustee, but we have no doubt that the appointment of the beneficiary as trustee by the court, on the death or resignation of the testamentary trustee, does not extinguish the trust. The incom

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

patibility of the two relations united in the same person is evident. Whether a trust so constituted in the first instance may not be sustained, leaving it to the court to substitute a competent trustee, will need consideration when the question directly arises. (Rogers v. Rogers, supra; Woodward v. James, 115 N. Y. 346.)

We come to the main question, and that is whether the court, either by virtue of an inherent or statutory power, could, upon the application made in this case, authorize James W. Stanley to bind the estate of the infant remaindermen by mortgage. That the Supreme Court, acting as a court of equity, possesses an inherent jurisdiction for some purposes over the persons and estates, real and personal, of minors, cannot, we think, be successfully controverted. The origin of the jurisdiction of the Court of Chancery in England over the persons and estates of infants is involved in some obscurity. The better opinion seems to be that it grew out of the transfer by the Crown to the chancellor of the supervision theretofore exercised by the king as parens patriæ over persons who, by reason of non-age, were incapable of acting for themselves. (See 2 Sto. Eq. Jur. § 1327, et seq.) The chancellor intervened for the protection of minors and their property, and the precedents are numerous where the chancellor authorized the application of their property for their education and maintenance, and, at times when the interests of the infants seemed imperatively to require it, permitted even the capital of a fund belonging to the infants to be anticipated or broken in upon for such or similar purposes. (Harvey v. Harvey, 2 P. Wms. 21; Saunders v. Vautier, 4 Beav. 115; Rocke v. Rocke, 9 Beav. 66; In re Bostwick, 4 Jo. Ch. 100.) But this power of management and disposition exercised by the chancellor (if not always so) came to be regarded as extending only to the personal estate of infants and to the income of their real property. It did not extend to the binding of the inheritance. The question came before Lord HARDWICKE in Taylor v. Philips (1 Ves. Sr. 229) and he said: "There is no instance in