17 N.Y.S. 910 | N.Y. Sup. Ct. | 1892
The appellant presented a petition to the surrogate asking that an order be made directing the sale of his deceased debtor’s real estate to pay his debt. The surrogate referred it to a referee to take proof, and report, with his opinion. The application was made under section 2749 et seq. of the Code of Civil Procedure, which provide, in substance, that such an order as was asked for may be granted, except where the real estate devised is expressly charged with the payment of debts. The debtor left a will, which was duly admitted to probate, and in that will he directed his executors to pay all his just debts and funeral expenses, and he gave his executors a power of sale of his realty in the following words: “Giving and granting to my executors and trustees full power and authority to sell and convey any and all of my real estate, either at private sale or public auction,” etc. He created by his will certain trusts, which we will assume, for the purposes of this matter, to be invalid, (but do not so determine.) The referee was of the opinion that the application should be granted, but the surrogate determined that the power of sale was sufficient to authorize the executors to sell the realty for the payment of debts, and therefore it was not necessary to resort to the proceeding instituted in his court by the creditor.
It is not controverted that, if this ruling of the surrogate is correct, the land cannot be sold in the manner or by the proceeding instituted by the creditor, and the single question, therefore, is as to the true interpretation of the power of sale. Is it to be exercised solely in connection with the trusts created by the will, or is it broad enough to confer a power to convert the realty into personalty for the payment of debts? If it is to be exercised only for specific purposes, the reasonable and necessary interpretation would be to restrict its exercise for those purposes, but if it is for all the purposes of the will, that is, to pay debts and funeral expenses as well as for other purposes, there can be no limitation imposed upon it. This requires an examination and analysis of the whole will, and, making it. we can find nothing which limits the power of sale to any specific object. It was conferred in order that the donees of the power might carry out the purposes of the will, one of which was the payment of debts. The payment of such debts, under the scheme of the will, was just as much one of the objects of the testator comprised within the power of sale as any other. It is a general power of sale to