69 N.Y.S. 563 | N.Y. App. Div. | 1901
The question presented on this appeal is whether in the case of a “ devise,” in terms, not of real estate but of the proceeds of its sale, the subject of the gift on the death of the devisee, after the testator but before the execution of a naked power of sale conferred upon the executors, is to be regarded for the purposes of devolution as real or as personal estate.
The will of the testator, J ames Russell, contains the following clauses:
“ Sixth. All the rest, residue and remainder of my personal estate and the net proceeds of the sales of the rest, residue and remainder of my real estate owned by me individually or with my copartner Edward Tracy or others, I give, devise a/nd bequeath to my wife and my children to be divided equally between them share and share alike, that is to say, to my wife one share, to each child an equal share with my wife. Should any of my children home died leaving lawful issue, such deceased child’s share to be given to such, issue.
“ Seventh. For the purpose of' such distribution of my estate among my wife and children, I fully authorize and empower my executors and executrix hereinafter named, or such of them as shall*244 qualify, and the survivors or survivor of them, to sell and dispose of any and all my real estate, and interests in real estate, at public Or private sale at such time or times within a lawful period, and on such terms.as they shall deem most advantageous to my estate, and to execute and deliver to the purchaser or purchasers thereof good ■•and sufficient deeds of conveyance thereof, and to do each and every act and thing lawful and necessary for them to carry out and complete said sales. I also authorize my executrix and executors hereinafter named to invest and reinvest the moneys of my estate until ■its distribution, such’ investments to be on improved real estate in the City of New York or bonds of the United States Government or New York State or City bonds. The net income of my estate %mtil its distribution I direct to be divided equally between my wife and children, share and share alike.”
At the time of the execution of the will the testator had five children who,- with his wife, survived him. He had no other children. He died a resident of this State in January, 1888. His -daughter Elizabeth D. married James IL Black on the 28th day of January, 1891, at the city of New York,,and died without having had children, intestate and under age, at Belfast, Ireland, on the 9th day of December, 1892, leaving her husband surviving. The proceedings herein were commenced on petition of her husband as ■ancillary administrator of her estate, and resulted in the filing of an ' account by the executors, in which they denied that he had any -right or claim in or to the estate, but the' surrogate has decided that lie was entitled to receive one-sixth of the residue of the testator’s personal estate and of the net proceeds of the sale of his real estate. The testator left a very large amount of real estate in this and other States, a part of it in his own name and considerable of it in joint ownership with his partner. The executors sold some of the real estate before and some-after the death of Mrs. Black.
It seems quite beyond question that there was an equitable conversion of the real estate “ out and out.” It is immaterial to inquire -whether the. beneficiaries could have restored the property to its •original character by any united action, inasmuch, as they never attempted to do so, and Mrs. Black died before she was legally competent to join in such an effort. The question of conversion of course is to be determined frpm the intention of the testator as
In Moncrief v. Ross (50 N. Y. 431, 436) the court said, “ by the power the land was equitably converted into money from the time-the sale was directed to be made, and will be so regarded thereafter in equity for all purposes. (Bogert v. Hertell, 4 Hill, 492; 1 Jarman on Wills, 525, 530.) This is upon the principle that equity regards as done what ought to be done. (Manice v. Manice, 43 N. Y. 303; White v. Howard, 46 N. Y. 144.) It follows that the land must be regarded as converted into money for the purpose of determining who is entitled to the proceeds, whether arising from income or a sale. So regarded by the eighth and ninth clauses of the will, the entire proceeds of the land, except the funeral expenses, etc., are given as money to the sisters of the testator, Jane and Agnes. Any income derived from the real estate before the sale has been made, in equity clearly belongs to these sisters, and not to the plaintiff.”
In Fisher v. Banta (66 N. Y. 468) the will directed a division of the real estate between the testator’s two sons. In a codicil the executor Was directed to sell the real estate, having no discretion, “ except as to the time and manner of sale.” (P. 476.) The sons survived the testator, but one of them died before the execution of
In Morse v. Morse (85 N. Y. 53) there was authority to sell expressed in the words “ I will, authorize and empower,” etc., with ■ power to lease meanwhile. Judge Andrews said (p. 59): “It is clear that the power of sale in the will in'question was conferred for the purpose of conversion, and with a view to the distribution of the proceeds of the sale of the land among the testator’s children. This is not expressly declared, but the prior gift of the whole residuary estate to them, followed by the power of sale to the executors, permits of no other inference. (Fisher v. Banta, 66 N. Y. 468 ; Marsh v. Wheeler, 2 Edw. Ch. 156 ; Kinnier v. Rogers, 42 N. Y. 531.) The direction to sell was imperative, and operated in equity as a conversion of the land into money. It was the intention of the testator that the beneficiaries should receive their respective interests in money, and not in land.”
In Hope v. Brewer (136 N. Y. 126) the executors were directed to sell and convert into money all the testator’s real- estate as soon as might conveniently be doné after his death. The court said (p. 134) : “ This provision of the will operates to convert the real estate of which Thomas Hope died seized into personalty, and subjects it to the operation, of the rules of law governing the devolution of per
Under this will the wife and children of the testator take the estate not only in money upon the conversion of the realty, but their interests are vested and immediate, both in tenure and in the right of enjoyment. There is no contingency, no uncertainty as to the beneficiaries, no dependency upon survivorship, no future event to determine the period of distribution, but, on the contrary, the executors may sell and divide the funds among the wife and children living both at the date of the will and of the testator’s death, as speedily as may be consistent with the due administration of their trust. The words “ should any of my children have died,” etc., in Mr. Russell’s will refer to a death before the testator, and not before ■distribution. The distinguished counsel for the appellants has labored with characteristic power and assiduity to gather sanction from the authorities for a contrary view from that herein stated, and to maintain that this is one of the cases where division is to be made in the future among a class whose members can only be determined when the time for distribution arrives. The authorities in this State are uniformly opposed to his contention. They were collated by the writer in Canfield v. Fallon (26 Misc. Rep. 345) in a case where the only gift was to be found in a direction to divide at a future date, and the opinion that even there, following the intention of the testator, the estate created was to be regarded as vested was ■adopted by this court (43 App. Div. 561) and by the Court of Appeals (161 N. Y. 623). But here the case is infinitely stronger; here the beneficiaries are. at all times known, the wife and children •of the testator as though mentioned individually by name; there is no postponement of payment until the happening of any contingency in a legal sense, and the property is given to them by direct and precise words of bequest. In Matter of Baer (147 N. Y. 348), to which the learned counsel for the appellants invites “ special attention,” the distinction here suggested was emphasized by the court (p. 354). “ Moreover,” wrote Judge O’Brien, “ there is not in this
To the like effect is Matter of Crane (164 N. Y. 71), also-cited by the appellants’ counsel. The division there, was postponed by the terms of the will until The death of the testator’s widow,, and was to be among the survivors of the testator’s brothers, sisters- and niece, and the issue of such as were dead, and the courts below held that the postponement was merely for convenience in administration and not for the purpose of annexing futurity to the subject of the gift, and that the case, therefore, fell within the exceptions to the rule now under consideration. The Court of Appeals held otherwise,, and on the express ground that the will contained no words of- gift. Chief Judge Parker said (p. 7.6): “ We are unable-to agree with the courts below in the construction given to ■ this, provision of the will. In the first place it will.be noted that. ¿Aerais no direct gift of the principal of the trust estate, but instead a-direction to divide it on the death of the testator’s widow. Tho Will provides: ‘Upon the decease of my said wife I order and. direct that my estate be divided as follows, viz.: Equally between my brothers and sisters and my niece, Flora W. Bulkley, each one-to take one equal share thereof. * * * Provided, further, thafcif any of-my said brothers and sisters and niece shall depart this-life before my said Wife, leaving lawful issue him or her surviving,, then the share of the one so dying shall be paid over to their issue-in equal shares.’ Two well-known rules of construction are applicable to this provision: First. Where the only words of gift are-found in the direction to divide or pay at a future time the gift is
' ■ It is proper to note that the rule referred to by Chief Judge Parker to the effect that where the gift is of money and the direction to convert the estate is absolute, the legacy given to a class
. The other points presented, and which are subsidiary to those discussed, have been considered, and nothing is found affecting the result. The conclusion reached is, that this will is to be regarded precisely as though . the testator had left personal property only, and had bequeathed the same directly to his wife and children in equal shares.
The decree and order should be affirmed.
All concurred.
Decree and order of the Surrogate’s Court of Westchester county affirmed, with costs.