tain an action to rescind and set aside said agreement of May 9, 1913, and will thereupon commence such action. But until said will is produced and duly probated your petitioner is not in a position to maintain an action to set aside said agreement." The petitioner is, therefore, contingently interested in the estate of her deceased brother. Her interest is contingent upon the production and probate of a later will and upon successfully setting aside and annulling the contract by which she has sold her interest in the estate of her brother to the Metropolitan Museum of Art. (See Matter of Work, 151 App. Div. 707; Franzuick v. Miller, 1 Dem. 136; Matter of Dollard, 74 Misc. Rep. 312.) This court has intentionally refrained from discussing the merits of the appellant's claim. She is entitled to have the Surrogate's Court pass upon the questions of fact. The order of the Appellate Division and of the Surrogate's Court should be reversed and the proceeding remitted to the Surrogate's Court for a further hearing and a determination of the questions involved upon the merits, with costs in the Appellate Division and in this court to the appellant. WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN and SEABURY, JJ., concur; POUND, J., not voting. Order reversed, etc. SCHOELLKOPF HOLDING CO. v. SAMUEL (Court of Appeals, January 4, 1916.) WILL-TESTAMENTARY POWER OF SALE-PROPERTY OF TESTATOR MUST BE SOLD IN MANNER DIRECTED IN POWER OF SALE. 1. A power of sale granted by the will of a testator must be strictly pursued, and must be executed according to the intent of the testator, and where it was manifestly intended that the sale or sales of his residuary estate should be for cash or the equivalent of cash, the sales must be so made, unless consent that they be made otherwise be given by all of the parties interested in the residuary estate. 2. Where under such conditions no proceeding was had in the Surrogate's Court in which infants interested in the property were cited or represented, a sale and transfer of the property is invalid and ineffectual to divest them of their interest. Schoellkopf Holding Co. v. Kavinoky, 170 App. Div. affirmed. APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 14, 1915, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy and the facts, so far as material, are stated in the opinion. Vernon Cole, for appellant. The executors had full and complete title, power and authority to transfer these lands to any one, and by transferring the same to the Schoellkopf Holding Company they vested in that company full and complete record title. (Albany Ex. Savings Bank v. Brass, 59 App. Div. 370, 171 N. Y. 693; Anderson v. Blood, 152 N. Y. 285.) The decree of the surrogate passing and settling the accounts of the executors of the Jacob F. Schoellkopf estate, based so far as the interest of Alfred Schoellkopf therein is concerned, upon the payment to and the release by Alfred's executors of that distributive share is final and conclusive upon that interest. (Salisbury v. Slade, 160 N. Y. 278: Greenland v. Waddell, 116 N. Y. 234; Stagg v. Jackson, 1 N. Y. 206; Matter of Wagner, 119 N. Y. 28.) The agreement of the 12th of September, 1901, was valid and effectual and required these lands to be sold and disposed of in the manner that they were. (Matter of Wagner, 119 N. Y. 28; Matter of Hodgman, 11 App. Div. 344.) The agreement of September 12, 1901, in equity operated to convert all of the interest in this land into stock of the company so to be formed; hence the carrying out of that agreement by the trustees and the delivery of stock therefor was not a breach of trust. (Williams v. Haddock, 145 N. Y. 144; De Barante v. Gott, 6 Barb. 492.) The trust created for the wife and children of the testator's son Louis was in no manner interfered with; the only thing done was to invest in the capital stock of the plaintiff company rather than in other securities, all of which was not only originally consented to, but after the expiration of the trust the interested parties, with full knowledge, released the (Woodbridge v. Bockes, 59 App. Div. 504, 170 N. Y. trustees. 596.) Michael M. Cohn, for respondent. The executors and trustees had no power to convey the lands and premises involved, except pursuant to a bona fide sale and for a valuable consideration in the. form of cash or its equivalent. (1 Jarman on Wills [6th ed.], 917; 2 Underhill on Wills, 1119, § 783; Griswold v. Caldwell, 65 App. Div. 371; Adair v. Brimmer, 74 N. Y. 539.) The conveyance by these executors and trustees to plaintiff "holding company was, in effect, merely a transfer or delegation of their own powers and responsibilities as trustees to another, and is condemned by law and void. (2 Underhill on Wills, 1124, § 784; O'Connor v. Waldo, 83 Hun, 489, 158 N. Y. 672.) The conveyance to plaintiff is void because it violates the scheme of the will, and defeats the trust created for the wife and children of the testator's son, Louis.、 (2 Heaton on Surrogates' Courts, 1330; Matter of Ungrich, 201 N. Y. 415; Stringer v. Young, 191 N. Y. 157; Dale v. Guaranty Trust Co., 168 App. Div. 601.) The new agreement of July, 1906, is absolutely void because the infant children of Alfred Schoellkopf were not, and were incapable of being, parties; because the executors of Alfred Schoellkopf had no legal authority to execute it; because its effect is to utterly defeat and annihilate the intention of the testator and the specific provisions of the will; and because the children of Louis Schoellkopf were under the age prescribed in Jacob's will. (Turco v. Trimboli, 152 App. Div. 431; Matter of Evans, 82 Misc. Rep. 193; Matter of Easterly, 202 N. Y. 466.) COLLIN, J. The plaintiff, as the vendor of real estate, seeks a judgment directing the defendant, as the vendee, to specifically perform the contract of purchase and sale made in November, 1914. The defendant denied the marketability of the proffered title, which came to the plaintiff through a deed, dated February 14, 1910, of the executors and trustees under the will of Jacob F. Schoellkopf. The testator at the time of his death owned the real estate in fee simple, and in case the executors and trustees had power and authority to convey the title devised by him, the defendant errs. The will devised the residuary estate, which included the contracted parcel and many others, to the executors and trustees, in trust, to take possession and sell, convey and dispose of it at such time or times, and on such terms, as to them seemed advisable, and, after making provision for a designated annuity, and the payment of debts and legacies, "to divide and distribute said residue of my estate as follows: to pay to" each of six children or the descendants of a child one-seventh thereof, and to retain one-seventh thereof in trust In January, 1910, a number of the parcels of land, incluing that in question, and a substantial part of the residuary personal property were still held by the executors and trustees; and all of the rersons who as legaces or derisees were interested in the resinary estIE Lekept tine infants hereinafter mentioned onymized from themselves, pursuant to two agreements between themselves, the plaintiff corporation with an authorized capital stock of $560,000, for the expressed purposes of taking over and acquiring title to such land and personalty, subject to and with the assumption of the debts and incumbrances, of issuing its capital stock in payment or exchange therefor and distributing it in proper amounts to the residuary legatees, of distributing the proceeds of the property as sold by the plaintiff to the holders of its capital stock and of dealing in real estate generally. In February, 1910, the executors and trustees conveyed and transferred to the plaintiff the lands and personal property (excepting certain specified securities and funds), and received as the consideration the 5,600 shares or the entire of the capital stock. Thereupon the Surrogate's Court, in a judicial settlement of the accounts of the executors and trustees, which set forth, among other things, the above-stated transactions and the two agreements mentioned underlying them, the second of which provided that the surrogate upon the final accounting might make and enter a decree "confirming the transfer of the property to the corporation on receipt of the capital stock and directing the distribution thereof as directed by the will," made the decree thus consented to. The shares of stock were in accordance therewith distributed in lieu of cash, and those who had consented. to the decree released the executors and trustees from all claims on account of the residuary estate. The two agreements mentioned were elaborate and extended. It is sufficient here to state that the formation of the plaintiff, the conveyance and transfers to it, the issuance and transfer of the shares of capital stock to the executors and trustees in lieu of cash, the distribution of them, the final decree and the discharge and release of the executors were in strict accord with the provisions of the second of them. Each of the adult persons interested personally in the residnary estate, who executed the agreements or the second of them, |