69 N.J. Eq. 694 | New York Court of Chancery | 1905
The complainant, as executrix of Anthony Coll, deceased, sold at public auction the real estate of the deceased to the defendants Erank and Edward J. Albus, who refuse to comply with their written contract of purchase upon the ground of want of power in the executrix to make a lawful conveyance. The bill of complaint seeks the specific performance of the contract as to defendants named, and also as to the defendants
The complainant grounds her power of sale upon the following paragraphs of the will of Anthony Coll, viz.:
‘‘Fifth. I bequeath all my personal property and real estate wherever situate unto Maurice Coll, Nancy McCole, Katie O’Donnell, share and share alike.
‘‘.Sixth. I hereby appoint my friend, Katie O’Donnell, executor of this my last will and testament, with power to sell all my real estate herein devised, and execute a deed or deeds therefor, and to do all other lawful things to carry out this my last will and testament.”
After the sale and contract foi’ its performance had been made, Maurice Coll and Nancy McCole objected to the further carrying out of the sale, upon the ground that they were the owners in common with the executrix of the land and were opposed to its sale by the executrix, denying her power to lawfully sell and convey it. No objection is made to the prices obtained; the opposition is rested entirely upon their right to take the land by election and the resulting want of power in the executrix to convey. This objection being made known to the purchasers they' refused to 'comply, urging as an excuse the absence of power to convey a merchantable title. In my judgment the objection is not well taken, nor is there sufficient doubt raised to require the court to withhold a decree for specific performance. The bequest was of the whole of testator’s estate to the three legatees in equal shares; it included all personal and real estate remaining after providing for payment of debts and special legacies, and was in effect a gift of the residue, which, so far as the personal portion was concerned, the executrix would of necessity have to divide between them.
The will contains an express power, of sale., as to all the “real estate herein devised,” and the devisees took subject to such power, which might perhaps have become ineffective if before its exercise they had elected to take the property; but a power of
The complainant is entitled to a decree for spéciñc performance against Erank and Edward H. Albus, with costs, and the bill will be dismissed as to Maurice Coll and Nancy McCole, but without costs.