30 N.J. Eq. 37 | New York Court of Chancery | 1878
The question presented • for adjudication is, whether, under the provisions of the will of Aaron Haggerty, deceased, the executor has power to sell the real estate of which the testator died seized. - By the will, the testator,
“ I appoint my beloved and trusty son, William H. Haggerty, my sole executor of this my last will and testament. My will and wish is to consult the heirs whether it will be best to sell it or otherwise—the homestead property.”
The scheme of the will is an equal division, among his children, of the testator’s entire estate, real and personal, after paying the legacy to his widow; his daughters, however, to have only the interest of their respective shares for life. This scheme not only contemplates a division of all the property, but also the investment of the shares of the daughters, which involves a conversion of the real property into cash. To make the division and the investment are part of the duties of the executor. Jones’s ex’r v. Stiles, 4 C. E. Gr. 324; Parker’s ex’r v. Moore, 10 C. E. Gr. 228; South v. Allen, 5 Mod. 101. To these ends there must be a sale of the real property. 'Where a testator directed that his real and personal estate be sold and divided amongst his sisters, a power to the executors to sell the real estate was implied. Tylden v. Hyde, 2 S. & S. 238. The better opinion at present seems to be, says Judge Redfield, that the mere fact that the avails of real estate, after it is converted into money, is directed to go in such a direction that it will have to pass through the hands of the executor in the form of money, will, by. implication, give a power of sale. 2 Redf.
There is still another consideration which may be added. The testator’s personal estate, if the amounts due to him from his sons be not included (and some of his sons are unable to pay those debts except out of their shares of his estate), is insufficient to pay his debts. He evidently intended that the debts due him from his sons should be paid by the sons in the distribution of his estate to them under his will, and he intended that his executor should have power to sell his real estate, and that he should do so, unless some arrangement should be made among his children which should render a sale unnecessary.
The language of Chief Justiee Shaw, in Going v. Emery, above cited, is applicable to the will under consideration : “The will is certainly very inartificially drawn, but this circumstance is never held to affect the validity of a will when