¶1 We agree with the learned Appellate Division in its construction of the will and the reasons given therefor, but as it is urged by the appellant that the judgment in partition made the title marketable, although there was no actual right to partition, we will briefly express our views upon that subject.
¶2 In Kilpatrick v. Barron (125 N. Y. 751) the validity of a title tendered under an ordinary contract to sell real estate depended upon the construction of a will, and one question was as to whether descendants of children of the testator, born after his death and prior to the time appointed for a sale, were entitled under the will, and although a majority of the court were of the opinion that the title was good, still they held that, as its judgment in support of the title would not bind such descendants, the title tendered did 'not meet the obligation assumed, and the purchaser was not bound to accept it.
¶3 In Kent v. Church of St. Michael (136 N. Y. 10, 17) the court, through Judge Earl, said : “ The trustees, children and grandchildren of Mrs. Stewart could not cut off or affect the title in the land of unborn grandchildren by any conveyance in pais. By such a conveyance they could convey no greater title than they had. … If the title to this land had actually been devolved under the will of Mrs. Stewart, and an action were brought to partition it, or to foreclose a mortgage upon it, or in some other way to change or extinguish the title, it would be the duty of the court to protect the rights of unborn grandchildren by setting apart land, or the proceeds of the land, to represent in some form their interests.”
¶4 So, in Ebling v. Dreyer (149 N. Y. 460), where the future contingent interests of persons not in being were sold under a *406 special act of the legislature authorizing a sale of infants’ lands, including such interests, the proceeds of the sale were paid into court and took the place of the land.
¶5 . In Monarque v. Monarque (80 N. Y. 320) it was held that a judgment and sale in partition only conclude.contingent interests of persons not in being; when the judgment provides for and protects such interests by substituting the fund derived from the sale of the land in place of it, and preserving the fund to the extent necessary to satisfy such interests. In that 'case, prior to the bringing of the partition suit, an action had been brought to obtain a construction of the will to which all living persons interested were parties, and a judgment was taken practically by default, so construing the will as to support an action of partition, and such judgment was set up in the complaint in the partition suit, still, it was held that, conceding said judgment was conclusive as to the rights of the parties thereto, it did not bind the contingent interests of unborn issue.
¶6 In this case it cannot be known who will be entitled to the proceeds of the land, when finally sold by the trustees, until the trust estate has terminated, which may not be for a generation. The persons thus entitled will take their respective shares under the will, as purchasers from the testatrix, and not as representatives of any party to the partition action. Ho provision is made for their benefit by setting apart a portion of the land or a portion of the proceeds of the land. The judgment has no more effect than would conveyances front all the parties to the partition action, assuming them to be adults. They could not bind after-born children by their deeds, because the power of alienation was suspended. There were no pefsons in being by whom an absolute fee in possession could be conveyed during the existence of the trust, except by the trustees under the trust, who would be compelled to hold the_ proceeds in the place of the land. Descendants cannot set aside at will a valid trust created by their ancestor. While they can bind themselves by deed, or by allowing judgment to go by default, they cannot bind persons not *407 in being at the time. In this case the attempt was made virtually to subvert a trust by a judgment in partition, to compel a purchaser to take title upon the sale and pay for the same, without any provision for the benefit of unborn children, but allowing all to be divided between living parties. The trustees did not defend, although they could have made a successful defense. If this can be done, how can a man create a trust in land for the benefit, in a certain contingency, of. persons not in esse, as he has an undoubted right to do, without having it subject to the danger of being overthrown, and the property designed for them divided among those for whom it was not intended ? The interests of the plaintiff and the defendants are the same, and the effect, if not the object of the suit, is to defeat a trust, so that the living will receive benefit at the expense of those who may be born hereafter. In Kirk v. Kirk (137 N. Y. 510), which was relied upon by the Special Term, the court directed the trust fund to be brought into court and tobe held for the precise objects for which the trust was created. The court itself thus carried out the trust, holding the trust funds for the benefit of persons who might come in and be entitled thereto, but no such precaution was taken in the case at bar.
¶7 Without elaborating our views we think the order of the Appellate Division was right and should be affirmed, with costs.
¶8 All concur, except Gbay, J., absent.
¶9 Order affirmed.