stitute, and for the purpose of making such division they are authorized and empowered to sell and convert all of his real and personal estate into cash. Undoubtedly a strong implication arises from the use of the word "paid" in directing the satisfaction of the legacies, that it was intended by the testator that the real estate should be converted into money and thus handed over to the legatees; but there is no imperative direction given to sell the lands, neither do the purposes of the will require such a sale; and a legal performance of the duties enjoined upon the executors could have been effected by a distribution of the property in specie to the legatees. The distribution or division of the residuary estate between the named legatees was the main object contemplated by the testator, and not its sale; and although he might have intended a conversion of the real estate, it does not affect the transfer of the title unless the intention to do so is manifested in the mode and language required by the statute. That expressly provides in the case of such a trust that no estate in the land vests in the trustees unless they are also authorized to receive the rents and profits of the same. Sec. 56, R. S. supra. Although the provisions of the will are inoperative to create a valid express trust under the statute, yet the power therein conferred might still be exercised as a power in trust; but in that event it is also expressly provided that the title shall descend to the heirs at law, subject to the execution of the power. R. S. §§ 56, 58, 59; Cooke v. Platt, 98 N. Y. 35; Konvalinka v. Schlegel, 6 Cent. Rep. 79; Downing v. Marshall, 23 N. Y. 366. The argument that title in the executors was to be implied from the intent expressed in sections 18 and 22 to give it to them is effectually refuted by reason of the adjudication of this court in 43 N. Y. 424, holding that said devises were invalid, to the extent of one half of the residuary estate, as being in conflict with the provisions of the statute forbidding testamentary bequests to religious and other charitable societies or corporations in certain cases, in excess of one half of the testator's property. Laws 1860, chap. 360. The case shows that the real estate of the testator embraced but a small portion of his property, and that the personal estate was much more than sufficient to satisfy all of the valid legacies. It was, therefore, the duty of the executors to satisfy such legacies from the personal estate; and resort to the real estate for such purpose could be had only when they were expressly charged upon it. An intent to satisfy these devises by a sale of the real estate cannot, therefore, be drawn from the provisions of this will. It is clear that there has been no valid devise of the land, either to the executors or to any other persons, and nothing to prevent its regular descent to the legal heirs of the testator. It is a settled principle of law that the legal rights of the heir or distributee to the property of deceased persons cannot be defeated, except by a valid devise of such property to other persons. Haxtun v. Corse, 2 Barb. Ch. 521; Jackson v. Schauber, 7 Cow. 195; Post v. Hover, 33 N. Y. 597; White v. Howard, 46 N. Y. 144; Hawley v. James*, 16 Wend. 61. It was said by the Chancellor in Haxtun v. Corse, 2 Barb. Ch. 521, that "It was not suffiIt was held in Cooke v. Platt that a merely cient to deprive an heir at law or distributee of discretionary power of sale in the executors for what comes to him by operation of law, proppurposes of distribution, even though connect-erty not effectually disposed of by will, that ed with the right to receive the rents and profits, did not vest them with title to real estate. Much less would this be so where no power to take rents and profits was given by the will or inferable from any of the purposes therein contemplated. See also White v. Howard, 46 N. Y. 162. The cases of Lent v. Howard, 89 N. Y. 175, and Donovan v. Van De Mark, 78 N. Y. 244, cited by the appellants, are not in conflict with the views expressed but rather tend to support them. In the first case it was held that the will did not vest the title in the executors, but that it descended to the heirs; but under the special provisions of the will it was decided that the right to the rents and profits of the real estate was separable from the right to the possession, and that those received by the executors intermediate the death of the testator and the execution of the power of sale were intended to be given to and belonged to the executors for the purposes of the will. In Donovan v. Van De Mark it was held that the will devised the real estate to the executor in trust with power, either directly or inferentially, to receive the rents and profits and apply them according to his judgment, and that therefore a valid trust was created and a legal title vested in the trustee. In that case the right to take the rents and profits was by the will clearly intended to be given to the executor, and in that respect differs from the case at bar. the testator should have signified his intention by his will that his heir or distributee should not inherit any part of his estate. But to deprive an heir or distributee of his share of the property which the law gives him in case of intestacy the testator must make a valid and effectual disposition thereof to some other person.' It is, therefore, quite plain that the executors did not take title to the lands in question under the will, unless such claim can be supported upon some other theory than the one discussed. It is however urged that the authority given the executors to sell and convey the real estate for the purposes of the will worked an equitable conversion, and so changed its character as to take it out of the operation of the rules provided by statute for the descent of real estate. As we have seen, under the construction given to this will, there was no necessity in satisfying its purposes that there should be a conversion; and equity will never presume a conversion, unless it is demanded to accomplish the lawful purposes expressed in the will by the testator. Judge Allen said, in 43 N. Y. 431, "If the residuary bequests are valid, there was an equitable conversion of the whole estate into personalty;" but he then proceeded to show that they were valid only to the extent of one half the value of the property; and it follows as a citations at close of this case, Lawyers' edition. *See editorial note at beginning and digested [Ed.] corollary from such conclusion that an equi- | their rights shall appear, in the manner providtable conversion had not taken place. ed by law in cases of intestacy." This question came under consideration in White v. Howard, 46 N. Y. 162, where Grover, J., said: "To constitute conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the parties to sell in any event; such conversion rests upon the principle that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result." It was also held in that case that so far as the will made no valid disposition of the real estate it vested in the heirs. While in the determination of the claims of heirs, devisees and legatees, arising under a will, the law will consider a conversion of real into personal property to have taken place for certain purposes in special cases, it never does so unless there has been a valid devise of the property in dispute in some form, to a specified beneficiary, and the purposes of the will require it to be done. It was said by Judge Earl, in Wilder v. Ranney, 95 N. Y. 12, that "There may have been a conversion of this real estate into personalty for many purposes, but not for all purposes. It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such; and the rules of law generally applicable to real estate remained applicable to this." In that case it was held that an equitable conversion of the real estate did not authorize its sale and conveyance by one executor without the co-operation of his coexecutor. The decision of this case might also, we think, have been rested altogether upon the former determination of this court in Chamberlain v. Chamberlain, 43 N. Y. 425, which rendered the questions therein determined stare decisis. The validity of the trust attempted to be created by the provisions in question, having there come under consideration, it was held that in so far as the testator attempted by the residuary clause to give to the institutions therein named more than one half of his residuary estate, his effort was ineffectual, and that such portion of his estate as was not well disposed of by will descended to the testator's heirs at law and next of kin. Under this decision and in accordance with the remittitur transmitted to it, judgment was on the 3d of October, 1871, entered in the supreme court, in the clerk's office of Cattaraugus County, by which it was determined "that the real estate of the said Benjamin Chamberlain, which he held or owned at the time of his decease, descended to his heirs at law, subject to the execution of such of the valid and effectual provisions of said last will and testament as relate to or affect the same; and exempt as aforesaid from any claim or right of dower on the part of the said Lucy Chamberlain; and that in case, after the payment of the debts of the testator and the execution of the valid and effectual provisions of said last will and testament, there shall remain any surplus from the personal estate of said testator, such surplus shall and is hereby declared and held to belong to and shall be distributed and divided between and among the next of kin of said testator as The action in which this judgment was rendered was brought by one Calvin J. Chamberlain, in behalf of himself and the other heirs at law and next of kin of Benjamin Chamberlain against the plaintiffs herein, the executors of the said Benjamin Chamberlain, and the principal legatees under such will, to obtain a construction of its provisions. A necessary result of this determination under the doctrine of stare decisis is to foreclose all parties from the right or privilege of reopening or discussing again the questions therein determined. It was said by Denio, J., in Towle v. Forney, 14 N. Y. 425, that "The cases, however, are extremely rare in which the determination of the highest appellate court can be properly departed from when the same legal question again arises before a court of the same government. If it shall be thought that an erroneous rule has been established by the adjudication relied on as a precedent, it is better that it should be changed by the Legislature by an Act which cannot retrospect than that the courts should overturn what they have themselves established, and thus disappoint all who have acted upon the rule which had been considered settled. If this is so where an abstract rule of law, determined in a prior case, is sought to be applied to new facts, the reason is stronger where, as in this case, a series of particular acts has been passed upon and held to produce a given legal result, and the same identical facts are again before the court between other parties. In such a case, there be ing no pretense of collusion and no reason to impute carelessness or inattention to the judges, the determination should be considered final and conclusive upon all persons in interest or who may become interested in the question, as well as upon the parties to the particular action." Chase v. Chase, 95 N. Y. 373. This application of this doctrine to the case in hand seems particularly appropriate, inasmuch as a large estate has been administered by the present plaintiffs in accordance with the principles declared in the former decision, and the entire known property of the testator converted and distributed among the heirs at law, next of kin and legatees, by a judicial settlement before the surrogate, acquiesced in by all parties interested. As early as 1875 a large sum derived from the residuary estate had been equally distributed by judicial proceedings between the residuary legatees and the next of kin; and said legatees had executed and delivered to the plaintiffs proper vouchers acknowledging full satisfaction of their legacies. But one question remains to be discussed, and that relates to the effect which the deed from the executors to Freeman has upon this action. It is clear that such a deed, being void under the statute, could have no affirmative effect in supporting the cause of action. While the statute in such a case authorizes the grantee in the deed to maintain an action in the name of his grantor to recover possession of the lands described from the occupant thereof, it is obvious that such deed adds nothing to the original right of the grantors. Code Civ. Proc. § 1501. The intent of the statute was to enable the grantee to avail himself of a title which overreached the right of the adverse possessor and barred such possessor from making the objection that the plaintiff in the action had parted with his title. Such an action can be maintained independently of the consent of the grantor, and is supposed to be conducted by the grantee alone for his own benefit; but it must necessarily be sustained, if sustainable at all, upon the validity of the title originally existing in his grantor. It is brought in his name and upon the theory of an original right in him to the possession of the property. But it has been seen that the plaintiffs never acquired any title or right to the possession of the disputed premises. The title to the premises, originally existing in their testator, passed at the time of his death to his heirs; and from that time they alone had a right to the property and the exclusive right to maintain an action for its possession. The power of sale given by the will to the executors could be made effectual only by its valid exercise, and this it is clear has never been effected. They stand, therefore, as plaintiffs in this case, precisely as though its exercise had never been attempted and they were asserting only the rights to the property which the will gave them. As we have before shown, they did not take the title by the will; and they have shown no other right to recover in this case. The judgment should be affirmed. All concur. Thomas J. CHAMBERLAIN et al., Exrs., etc., Appts., 0. Hascal L. TAYLOR et al., Respts. (Decided April 19, 1887.) Messrs. E. D. Northrup and William F. Cogswell, for appellants. Messrs. John G. Hall and D. H. Bolles, for respondents. Ruger, Ch. J., delivered the opinion of the court: This case differs from the preceding case of Chamberlain v. Taylor only in respect to the execution of the power of sale contained in the will of Benjamin Chamberlain. 2. 3. application made to him by a purchaser at a state tax sale of real estate, to cancel the sale and refund the purchase money, where the purchaser alleges that the tax was invalid and presents proofs in support of his allegation. Laws of 1855, chap. 427. The comptroller's power to cancel such sales is not restricted to cases where the invalidity appears on the face of the proceedings, but may be exercised in cases when the invalidity depends upon extrinsic facts to be established by evidence before him offered by the the purchaser, either before or after the deed. Where a power is given by statute, everything necessary to make it effectual, or requisite to attain its end, is implied. 4. The power to cancel implies power to receive evidence of the defect, and to act upon such evidence. The comptroller has power to receive affidavits and to administer oaths to witnesses produced before him, on such inquiry. (Decided April 19, 1887.) APPEAL from an order of the Supreme Court at General Term in the Third Department, affirming an order of the Albany Special Term granting a peremptory writ of mandamus compelling the Comptroller to hear and determine an application to set aside a state tax sale. Affirmed. The facts and questions raised appear from the opinion. Mr. Denis O'Brien, Atty-Gen., for appellant: It is submitted that it was the intention of the Legislature only to clothe the comptroller with power to correct any errors made by himself as an officer of the State, or any error that appears on the face of the record, and that he cannot be compelled to act as a court of inquiry at the suggestion of every purchaser at a tax sale. Section 843 of the Code of Civil Procedure gives the comptroller no judicial powers in the case in hand. People v. Chapin, 2 Cent. Rep. 467; Mayor v. Davenport, 92 N. Y. 612; Cagwin v. Hancock, 84 N. Y. 537. If the Comptroller had any discretion to exNo proof was given in this case of any at-ercise upon the question of entertaining the aptempt to execute such power of sale; and the plication of the relators herein, then the court right of the plaintiffs to recover was rested at special term had no right to sit in judgment wholly upon the right in the real estate con- upon his exercise thereof, or to coerce his action ferred upon them by the will. in that behalf. As we have seen in the preceding case, the title did not pass to them; and the judgment must, therefore, be affirmed. All concur. PEOPLE, ex rel. George W. OSTRANDER et al., Respts., v. Alfred C. CHAPIN, as Comptroller etc., Appt. 1. The comptroller can be required by mandamus to hear and determine an People, ex rel. Demorest, v. Fairchild, 67 N. Y. 334. The question in this case is not simply whether the Comptroller had the right or power to receive an affidavit or to examine a witness who voluntarily appears before him, but whether, "coupled with his lack of power to compel the attendance of witnesses" or to protect himself against imposition from falsehood and perjury, he should be compelled, by mandamus, to entertain such a proceeding, and to receive such evidence. It is submitted that his discretion in this particular is no more the sub ject of review by the courts than his action | the purchase money and interest thereon to be would be in case he had entertained the appli- refunded, out of the state treasury, to the purcation, heard the evidence, and then denied it. chaser, his representatives or assigns." He did hear the application, but refused to receive or be bound by the evidence offered. People, ex rel. Hammond, v. Leonard, 74 N. Y. 443. But the refusal of the Comptroller to entertain the application of the relators, and to take the action requested of him, may be upheld upon any ground that now appears, which could not have been remedied if the point had been raised by the comptroller upon the application. Allard v. Greasert, 61 N. Y. 4. The papers presented to the Comptroller show that the sale sought to be set aside took place in 1871 and the irregularity complained of took place between 1861 and 1865. The Comptroller should not be compelled to entertain such a proceeding as this after such an unreasonable delay. People, ex rel. Millard, v. Chapin, 5 Cent. Rep. 916; People, Sheridan, v. French, 31 Hun, 618. Mr. Arthur L. Andrews, for respond ents: A mandamus is the proper remedy. The power to make cancellation of invalid tax sales is conferred upon the Comptroller by the statute. Laws 1855, chap. 427, $ 83, 85. Any person interested in a power conferred by statute may apply for a mandamus to compel an exercise of the power. People, Ward, v. Asten, 49 How. Pr. 405; affirmed in 62 N.Y. 623; People, Boltzer, v. Daley, 37 Hun, 461. The Comptroller is authorized to take such proofs of alleged irregularities as will enable him to determine whether the sale is ineffectual to give title. It is urged, on the part of the Comptroller, that he has no power to summon witnesses, nor are they liable to punishment in case of false testimony. Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. 1 Kent, Com. 464; Stief v. Hart, 1 N. Y. 20. It is respectfully submitted that the views of the respondents are sustained by the decision of this court in Clark v. Davenport, 95 N. Y. 477. Rapallo, J., delivered the opinion of the court: The question presented by this appeal is whether the Comptroller can be required by mandamus to hear and determine an application made to him by a purchaser at a state tax sale of real estate, to cancel the sale and refund the purchase money, where the purchaser alleges that the tax was invalid, and presents proofs in support of his allegation. Section 85 provides that if the discovery that the sale was invalid shall not be made until after the conveyance, it shall be the duty of the comptroller on receiving evidence thereof to cancel and refund, etc., and to recharge the county, from which the tax was returned, with the amount refunded. The tax sale in this case was made by the Comptroller in 1871, for the unpaid taxes of the years 1861 to 1865, inclusive, upon certain lands in the Town of Wells in Hamilton County. The purchaser paid the purchase money and received the usual certificates of sale, and afterwards assigned them to the relators. No deed appears to have been given by the Comptroller conveying the land sold. The relators claim that they have found that the board of supervisors of the County of Hamilton did not in any of the years for the taxes of which the lands were sold, estimate and set down in the assessment rolls, the sums to be paid as a tax upon the lands, as required by 1 R. S. 395, §33; and this omission, the relators allege, rendered the sale invalid, and ineffectual to give title to the lands sold. Or on about the 8th of December, 1885, they made application, by petition in writing, to the Comptroller for a cancellation of the sales, and the refunding of the purchase money. Their petition set forth the sale and the issuing of the certificates, and alleged that the supervisors of the several towns of Hamilton County, and Town of Wells, failed to extend the tax on the several assessment rolls, as a board of supervisors, but delegated to each individual member to do the same and did not subsequently ratify said extension. The petition was accompanied with the certificates of the sales and the assignments thereof. In August, 1886, the relators, through their counsel, requested the Comptroller to take action on their application, and produced to him the affidavit of the clerk of the board of supervisors of Hamilton County, who was in office during the year 1861 to 1865, both inclusive, and also the affidavit of one of the members of said board, substantiating the allegations of their petition; and at the same time offered to produce satisfactory evidence of the defect alleged, from witnesses who knew the facts. On the 20th of August, 1886, the Comptroller sent to the attorneys for the relators the following communication refusing their request. "State of New York, Comptroller's Office, Albany, August 20, 1886. In the Matter of the Request to Grant Application 223 on the Production of Satisfactory Proof of Irregularities not Patent on the Face of the Records. Stedman, Thompson & Andrews, Chapter 427 of the Laws of 1855, § 83, provides as follows: "Whenever the comptroller Albany, N. Y. shall discover, prior to the conveyance of any Gentlemen: While I do not question the lands sold for taxes, that the sale was for force of the authorities cited by the applicant any cause whatever invalid or ineffectual to in making this special request, and while I have give title to the land sold, the lands so improp-no reason to doubt his ability to produce before erly sold shall not be conveyed; but the comp- me evidence of the kind and force that would troller shall cancel the sale, and forthwith cause be required upon a trial in court, it, neverthe less, seems to me that his request is, practically, I dial feature of that Act is also supported by that I should assume judicial powers and func- consideration of sound policy, as it was calcutions not conferred upon me. The so-called lated to encourage persons to bid at tax sales, common-law evidence which the applicant of- by the assurance that they would either get title fers to produce before me, would not, after all, to the land they bought, or a return of their be evidence in any technical sense. It would money, and were not likely to lose both. It be such, superficially; but it would not and was beneficial to the land owner, because it could not be invested with the attributes, or ex- tended to make his land bring a better price at pose the witness giving it to the penalties, ac- the sale, and also to the State, as it tended to companying the giving of true or false tes- enable it to collect its unpaid taxes, by encourtimony under legal oath before a duly qualified aging purchases at tax sales. tribunal. The applicant's request is, therefore, denied. Respectfully Yours, Alfred C. Chapin, Comptroller." The relators thereupon, on affidavits stating the foregoing facts, made a motion in the supreme court at special term for a writ of mandamus commanding the Comptroller to proceed to hear, act upon and determine the application made by the relators, and to receive such evidence, to be offered by the applicants, as would be competent in a court of justice, or such proof as is authorized by statute. In opposition to the motion the Comptroller presented his own affidavit, setting forth his letter of August 20, and alleging that, in his belief, the statutes of this State did not clothe him with the power to examine, in a judicial capacity, evidence aliunde the record, for the reasons set forth in said letter. The position taken by the Comptroller thus appears to have been that the Act of 1855, authorizing him to cancel tax sales and cause the purchase money to be refunded to the purchaser, or his assigns (Laws of 1855, chap. 427, § 83), applied only to cases where the invalidity of the sale appeared upon the face of the proceedings, and that he had no power to cancel a sale where the invalidity did not thus appear, but had to be established by extrinsic evidence. The motion for a mandamus was granted by the court at special term, and the order was affirmed at general term; and the Comptroller now appeals to this court. We are of opinion that the powers of the Comptroller, under the Statute of 1855, are not so restricted as he contends. The statute, so far from providing merely that he may cancel the sale on discovering that it is invalid for any cause appearing on the face of the proceedings, enacts that when he discovers that it is for any cause whatever invalid or ineffectual to give title to the lands sold, he shall cancel the sale and forthwith cause the purchase money, with interest, to be refunded to the purchaser. This statute was evidently intended to vest the Comptroller with power to make restitution to purchasers at tax sales, of the purchase money paid by them, whenever it should be found that the sale was ineffectual, for any reason, to enable them to obtain title to the land which they had bought and paid for. This was just to the purchasers, who were entitled under section 63, of the same Act of 1855, to a title in fee, but who at the time of the passage of the Act of 1855 would have had no legal remedy to recover back their money from the State in case their title failed. It is not certain that they would have any remedy now unless one is afforded by the Act of 1855. The reme To restrict the Comptroller in this power of canceling sales, to cases where the invalidity appears upon the face of the proceedings, would not only do violence to the language of the statute, but would frustrate its intent. The intent was to protect the purchaser in case the sale was found to be ineffectual to give him title. This protection would be very inadequate if it left him to take the risk of all the many other defects which might exist in a tax title. As to those, the purchaser would have had no remedy except by petitioning the Legislature in case his title proved invalid, for in 1855 there was no other mode of obtaining redress from the State; and it is at least questionable whether the subsequent statutes, establishing the board of audit and the board of claims, would afford a remedy. Section 85 of the same Act shows very clearly that by the words "for any cause whatever" the intention was to provide for cases where the invalidity depended upon extrinsic facts, to be established by evidence, for that section provides for the cancellation of the invalid sale after the Comptroller's deed has been executed, and declares it to be the duty of the Comptroller upon receiving evidence that the sale was invalid, to cancel it and refund the purchase money. It cannot be conceived that the Legislature intended to draw a distinction between the two cases, and to provide that where a deed had been executed the Comptroller should receive evidence, and that where no deed had been executed he was not empowered to receive evidence of the invalidity of the sale. Taking the two sections together it seems plain that it was intended that in both cases the Comptroller should receive evidence, and that it was implied that the purchaser, who was the party interested, should have the right to offer such evidence. The Act of 1873, chap. 120 (referred to in the opinion of Peckham, J., at special term), is confirmatory of this view. That Act provided for setting aside cancellations whenever they have been obtained by fraud, misrepresentation or suppression of any material fact, or by a mistake of fact. This statute is entirely inconsistent with the theory that the Comptroller was limited in his power of cancellation to defects appearing on the face of the proceedings and could not consider extrinsic facts. The Comptroller objects that the affidavits produced to him, and the testimony of witnesses offered on the part of the relators, were not evidence in a technical sense, because he was not vested with judicial powers and functions, and such affidavits and testimony would not expose the witnesses to the penalties accompanying the giving of false testimony under legal oath before a duly qualified tribunal. This is one of the grounds upon |