7 N.Y.S. 542 | N.Y. Sup. Ct. | 1889
Lead Opinion
The defendant, as the executrix of the estate of Thomas H. Geraty, deceased, entered into a contract with the plaintiff for the sale and conveyance to him of premises known as 54 East Seventy-Ninth street, in the
The testator at the time of his decease left surviving him six daughters, neither of whom were married, except Margaret A. Fagan, deceased. Josephine, one of the remaining daughters, became an inmate of a convent, and the other four are still entitled to the use, possession, and occupancy of these premises. And under the will they are'entitle'd to continue in that use and occupancy until the death of the testator’s two children, Agnes IC. and Ada H. Geraty, or the marriage of all his children, as either of such events may first occur. No estate in the premises has been given by the will to these daughters. But as the executrices were vested with no more than a power of sale over the property, the testator’s daughters became seised of the title to the land, subject to the execution of this power, vested in the executrices and the survivor of them. But the exercise of the power created by the will for the sale and conveyance of this land was dependent upon the occurrence of one of two events. They were the decease of the testator’s two children, Agnes K. and Ada H„ or the marriage of all his children. And neither of these events had occurred at the time when the conveyances were presented for the plaintiff at the place mentioned in the contract for its final performance. These two daughters were still living, and neither of the five surviving daughters of the testator was married. And for that reason the-period prescribed for the sale of the property had not arrived. In this respect the case is entirely different from that of Murray v. Murray, 7 N. Y. St. Rep. 391, where a complete power of sale existed at the time when it was proposed to be, and was in fact, executed; while here the power of sale was contingent and dependent upon the occurrence of one of two events, neither of which had occurred at the time when the deeds were proposed to be delivered. The surviving executrix, therefore, was notin a condition to execute this power; for it has been held that the extent of a power, like the extent of an agency created by a written power of attorney, must be sought for in the instrument conferring the power, and authority not found there does not exist. Hetzel v. Barber, 69 N. Y. 1, 13.
But in behalf of the surviving executrix the position has been taken that the children of the testator, for whose benefit this power was primarily created, were entitled to make their election that the power should not be resorted to, but that they should at once secure the advantage of the sale of the property by a conveyance made and executed by them for that object. And that position under the authorities might probably be sustained if these children were absolutely vested with the title to this land, or to the proceeds arising from its sale. But as that has been directed by the will, they were not so entitled; for whatever interest vested in them by descent was liable to be defeated by the exercise of this power of sale given to the surviving executrix, as well for their descendants as themselves. The children were not absolutely entitled to the proceeds of the sale of the property, for those proceeds were to be distributed among them and their descendants. Under this direction, if either of the testator’s remaining-daughters should marry and have issue living, and die leaving surviving children prior to the decease of the daughters Agnes K. and Ada H., these children would be entitled to participate in the division of the proceeds of the sale of the land. And their title to such proceeds would not be derived from the deceased parent, but from the directions contained in the will of the testator. The event is not improbable that two, or even three, of
By the language which has been employed in this part of the will the sale of the land was not to be made until one or the other of the events mentioned had transpired. • And when the sale should in that maimer be made, its proceeds were to be distributed among the testator’s children who were living and the descendants of those who were deceased. It was at the occurrence of one of these events only that this sale and distribution were directed to take place. And the reasonable import of the language used by the testator is that the persons answering the description contained in the reference made to them in the will were those, and only those, who were to share in the proceeds of the sale of this property. The legal rule is conformable to the language of the will; for “legacies given to a class of persons vest in those who answer the description and are capable of taking at the time of distribution. They are deemed to be the objects of the gift. ” Teed v. Morton, 60 N. Y. 502, 506; De Laney v. McCormack, 88 N. Y. 174, 183. neither the testator’s children, nor the infant son of the daughter who died, had, at the time when these deeds were offered for delivery, the title to this land. What they had in the property was a right of possession, with a defeasible title, subject to the execution of the power, when either event occurred upon which it could be exercised, and to share in the proceeds of the sale so far as they might be living at that time. So far as the daughters should then be deceased, both the right and the title would vest under the will in in her surviving children. And those children, after either event happened upon which the power was dependent, would be entitled to insist upon the execution of the power, the sale of the property, and the distribution of its proceeds, receiving for themselves the shares which they would then be entitled to under the will. And if a sale should now take place, and the proceeds of the property be divided among the testator’s daughters, and the child of the daughter deceased, another sale and division of the proceeds would become necessary and legal after the decease of the daughters, if they left descendants or children surviving them. It follows, therefore, that the title proposed to be given by these deeds to the plaintiff was not such a title as he was authorized to demand under the language of the contract. And where that is the fact, or the title may be the subject of serious doubt, the law will not compel the purchaser to accept or receive it. Church Home v. Thompson, 108 N. Y. 618, 15 N. E. Rep. 193. The judgment adjudging the title to be such as the plaintiff was bound to receive; and directing a specific performance of the contract, was therefore erroneous, and it should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event.
Brady, J., concurs.
Concurrence Opinion
(concurring.) Without concurring in or dissenting from the construction placed by Mr. Justice Daniels upon the will of Thomas H. Geraty, deceased, I concur in the conclusion arrived at by him. A purchaser of land is entitled to a marketable title. A title open to a reasonable doubt is not a marketable one, and where such title depends upon a will the construction of which is open to discussion, even if the court is of opinion that the true construction will give the purchaser a good title, he should not be required to run the risk of a subsequent different construction being put upon