70 N.Y.S. 634 | N.Y. App. Div. | 1901
It is necessary to set out only the 11th and 13th paragraphs of the will:
“ Eleventh. All the rest, residue and remainder of the property and estate, real and personal, of every description and wheresoever situated, of which I may be seized or possessed, or to which I may be entitled, at the time of my decease, I give, devise and bequeath unto my grandchildren, Anna H. Tatum, Albert H. Tatum and Frederick 0. Tatum, children of my deceased daughter, Alice H. Tatum, for their own use and benefit forever, share and share alike. But if any of my grandchildren hereinbefore named shall not be twenty-one years of age at the time of my. decease, the share in my estate hereinbefore bequeathed or devised to such grandchild shall be held by the trustee hereinafter named or his successor, in trust to invest the same and keep the same invested until such grandchild shall attain the age of twenty-one years, and then to pay over to such grandchild the said principal sum with the interest and accumulations thereon ; and in the event that such grandchild shall die before attaining the age of twenty-one years, then to pay the said
“ Thirteenth. I constitute and appoint my son-in-law Charles A. Tatum, the executor of this my will, and trustee of the several trust estates hereinbefore created; and I hereby authorize and empower my said executor and trustee to sell, at public or private sale, and at such time or times and in such manner, and for such sum or sums, and upon such terms as to him, in the exercise of his best judgment, may seem most expedient, and to convey all or' any part of my real and personal estate as he may consider it necessary or proper to do for the payment of my said debts and of said legacies, and for any other purpose or purposes whatsover.”
The question presented by this appeal is whether the testatrix intended that there should be a conversion of the realty. She left a house, lot and stable and $70,000 in personal property. Three grandchildren, two of age and one an infant twelve years old, survived her. When the testatrix died, one of the elder grandchildren was married to Mr. Preston. Mrs. Preston died intestate - without issue, leaving her husband and, as her only heir at law, her father. The husband took out letters of administration upon his wife’s estate. Shortly after the death of the testatrix the realty was sold for $15,000. The father of the said deceased grandchild claims a share of the proceeds as heir at law of his daughter, and her husband claims such share on the theory that the will of the testatrix effected conversion of said realty at the time of her death, and that, therefore, the proceeds pass to him as personalty. Before a conversion can be justified there must appear a positive direction. There is none expressed in this will, for the power of sale is clearly discretionary. And such a direction can only be implied “ when the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt.” For where only a discretionary power to sell is given and the scheme of the will can be carried out without a conversion the land will remain land. (Scholle v. Scholle, 113 N. Y. 261; Clift v. Moses, 116 id. 144.)
The decree must be affirmed, with costs.
All concurred.
Decree of the Surrogate’s Court of Kings county affirmed, with costs.