Supreme Court, Nassau County, New York,
Special Term, Part I.
Alvan S. HUTCHINSON and Jeane Hutchinson Brown as beneficiaries of the Trust
created by the Last Will and Testament of Sally S. Hutchinson, Deceased,
individually and for the benefit of all others similarly situated, Plaintiffs,
Lena Hutchinson EMERSON, individually and as Executrix of the Last Will and
Testament of Sally Hutchinson, Deceased, Alvan S. Hutchinson, Jr., and Mary
March 16, 1965.
Action to set aside conveyance of property and to compel accounting of profits
derived therefrom wherein defendant moved for summary judgment. The Supreme
Court, William R. Brennan, Jr., J., held that under will naming two persons as
executors and trustees and vesting them with general power of sale, trustee
remaining after resignation of one trustee was clothed with absolute power to
sell undivided interest in realty and her deed was sufficient to pass title and
that title received by person who was not shown to be other than innocent
purchaser for value could not be successfully assailed on basis of alleged fraud
or conspiracy of others but that charge of fraud levied against other defendants
presented factual issues that could not be summarily decided on affidavits
Motion granted as to one defendant and otherwise denied.
 Trusts 239
390k239 Most Cited Cases
In absence of will provision requiring joint action, power of sale bestowed on
trustees may be exercised upon resignation of one trustee by remaining trustee.
Surrogate's Court Act, § § 224, 226.
 Trusts 242
390k242 Most Cited Cases
Under will naming two persons as executors and trustees and vesting them with
general power of sale, trustee remaining after resignation of one trustee was
clothed with absolute power to sell undivided interest in realty and her deed
was sufficient to pass title.
 Trusts 200(1)
390k200(1) Most Cited Cases
Where will vested title in "executors in trust," only capacity in which woman
was vested with title was under terms of the trust and where deed when read in
connection with will demonstrated that she acted in her capacity as executor in
trust, another name for trustee, use of label "executor" in deed did not
diminish her power to convey.
 Vendor and Purchaser 239(1)
400k239(1) Most Cited Cases
Title received by person who was not shown to be other than innocent purchaser
for value could not be successfully assailed on basis of alleged fraud or
conspiracy of others.
 Judgment 181(29)
228k181(29) Most Cited Cases
Issue as to whether conveyance by defendant executor of estate to another
defendant was fraudulent because premises were sold for grossly inadequate sum
was presented, precluding summary judgment for defendants sued by life income
beneficiary of trust and remaindermen.
**688 *420 Sheridan & Madigan, New York City, for plaintiffs; Marcus Klein,
New York City, of counsel.
Alvan S. Hutchinson, Jr., Oyster Bay, for defendant Lena Hutchinson Emerson.
Dreyer & Traub, Brooklyn, for defendants Hutchinson and DeRosa; Samuel
Kirschenbaum, Brooklyn, of counsel.
WILLIAM R. BRENNAN, Jr., Justice.
Motion by defendants for summary judgment in an action to set aside a
conveyance of property and to compel an accounting of the profits derived
The plaintiff Alvan S. Hutchinson is the life income beneficiary of a trust,
the principal of which consisted of a one-half interest in the residuary estate
of his mother who died on April 19, 1944. The coplaintiff Brown and her
brother, the defendant Alvan S. Hutchinson, Jr., are the remaindermen of the
The testatrix, by her last will and testament, devised one half of her
residuary estate to her sister, the defendant Emerson; and directed the other
half to be held in trust and the income therefrom paid over to the plaintiff
Alvan S. Hutchinson during his life and the principal paid over to his children
on his death. The will named the defendant Emerson and Leonard W. Hall as
executors and trustees, and invested them with a general power of sale. Both
fiduciaries qualified, and letters testamentary and of trusteeship were issued
to them on May 19, 1944. The coexecutor, Leonard W. Hall, was subsequently
elected Surrogate of Nassau County, and on December 31, 1952 he resigned as
trustee of the estate. However, he failed to resign as executor, and such
action was not taken until a judicial settlement of his accounts was approved on
November 30, 1964, effective as of December 31, 1952.
The defendant Emerson undertook to sell real property forming part of the
residuary estate to the defendant Hutchinson, and on November 19, 1963 delivered
a deed which she executed individually and as executor of the estate. The
grantee later resold the property to the defendant Mary DeRosa.
The complaint, containing a single cause of action, nevertheless proceeds on
two theories. It charges that the respective conveyances are **689 void because
the original deed was made by only one of the two executors named in the will
while the other was still qualified to act. It also alleges that the conveyance
to the defendant Hutchinson was fraudulent because the premises were sold for a
grossly inadequate sum.
 Absent a will provision requiring joint action, a power of sale
bestowed on trustees may be exercised upon the resignation of *421 one trustee
by the remaining executor and trustee (Striker v. Daly, 223 N.Y. 468, 119 N.E.
882; Loeb v. Hasslacher, 209 App.Div. 58, 203 N.Y.S.2d 393; Striker v. Mehrtens,
109 Misc. 220, 179 N.Y.S. 460, aff'd 191 App.Div. 947, 181 N.Y.S. 956; Matter of
Thomas, 254 N.Y. 292, 172 N.E. 513; Surrogate's Court Act § § 224, 226).
Consequently, the defendant Emerson, as sole remaining trustee, was, on November
19, 1963, clothed with an absolute power to sell that undivided interest in the
realty which was vested in her as trustee. Since she was personally and
individually vested with the remaining undivided interest, her deed, in both
individual and fiduciary capacities, was sufficient to pass full title.
Plaintiff argues, however, that she didn't convey as trustee, but as executor.
This is mere nomenclature. The will vested title in the 'executors in trust,'
and the only capacity in which she was vested with title was under the terms of
the trust. The deed, when read together with the will, demonstrates that she
acted in her capacity as executor in trust, which is but another name for
trustee, and the use of the label executor in the deed did not diminish her
power. Leonard W. Hall, by his prior resignation as trustee, had effectively
divested himself of any power with respect to the trust, and his signature on
the deed would have added nothing. The complaint, then, insofar as it proceeds
upon the theory that the conveyance is void, states no cause of action and must
 With respect to the alleged fraud or conspiracy theory, the title
received by the defendant DeRosa cannot be successfully assailed, and since
there is no showing that she is other than an innocent purchaser for value, the
complaint against her must be dismissed. The charge of fraud levied against the
other defendants presents factual issues that may not be summarily decided on
the affidavits presented. See Noll v. Smith, 250 App.Div. 453, 294 N.Y.S. 562.
The motion is granted as to the defendant DeRosa, and is otherwise denied.
262 N.Y.S.2d 687, 47 Misc.2d 419
END OF DOCUMENT
Hutchinson v. Emerson, 47 Misc.2d 419, 262 N.Y.S.2d 687 (N.Y.Sup., Mar 16, 1965)
Supreme Court, Nassau County, New York,