45 N.Y.S. 57 | N.Y. App. Div. | 1897
The action was brought to secure a construction of the will of Mary E. Brennan, who died in the city of New York on the 13th of November, 1895, having made the will in question on the day before her death.
In the.first two clauses of the will the testatrix undertakes to dispose of all the. real estate of which she was the owner. There are two classes of people whom she desired to benefit from the estate: Her' stepchildren, the children of her husband by a former wife, ■ and her own children. It was the purpose of the first two clauses of the will to carry this intention into effect. She prescribed by the first clause of the will, that her stepchildren, naming them, “ shall share equally with my own children, in the net proceeds of the sale of the premises No. 94 & 96 White street, No. 88 Elm street, No. 156 West 15th street, and two-thirds (•§) of the net proceeds of the sale of the premises No. 514 Pearl street.” By the second clause of the will she directs “that the remaining one-third (•§■) of the net proceeds of sale of the premises No. 514 Pearl street and the net proceeds of the sale of the premises No. 155 West 92nd street shall be divided among my own children,” naming them. One of these children was the plaintiff.
But it is said by the appellant that there is no expressed direction
But it is said that no power of sale will be implied, because no person is mentioned- in the will upon whom the duty is devolved to ■execute it. It is very true that the testatrix does not nominate any executors in her will, but she evidently intended that an administrator should be appointed to carry into effect the dispositions of the will. That that is so appears" by the provisions of the fifth clause by which she devolves upon the administrator certain duties connected with the care of the property. Even were it not so, the ■court, for the purpose of carrying the will into effect, would appoint ■ an administrator with the will annexed. . The power of sale which was created by this will was peremptory, the dispositions of the will necessarily requiring that the real estate should be converted into personalty. As the intent of the testatrix can be carried into effect in no other way, the real estate will. be deemed to have been com verted into personalty as of the time when' the sale should have taken place (Fraser v. Trustees of United Pres. Church, 124 N.Y. 479), and these proceeds would necessarily go into the hands of the administrator with the will annexed, to be accounted for by him as personalty. (Stagg v. Jackson, 1 N. Y. 206.) It is clear that the testatrix intended that these proceeds should go into the hands •of. the administrator, because by the fifth clause of the will she
The next question raised upon the construction of this will arises upon the fifth clause. By the second clause, as has been stated, the testatrix directed that there should be divided among her children the net proceeds of the sale of certain premises therein mentioned. Of these children the testatrix’s daughters, Mary E. Kane and Josephine 0. Meehan, were two. By the fifth clause of the will the testatrix directed that the shares of those two daughters in all her property, both real and personal, should be invested by her administrator in trust for them, and the income derived therefrom should be paid to them during the lifetime of their respective husbands, and, upon the death of said husbands, the daughters should receive the principal .sum in fee simple absolute. The testatrix further directed that if either of the daughters should die before their husband, leaving issue living at their death, the principal should go to their issue in fee simple absolute, and if either should die without leaving issue, then said principal should go to their next of kin and heirs at law in fee simple absolute.
It is claimed on the part of the-plaintiff that this disposition of her share of the property is inconsistent with the gift to her in the second clause of the will. She says that by the second clause she took an absolute- estate, and that by the fifth clause that estate is cut down from a legal estate in perpetuity to a mere equitable interest. We do not accede to this contention. The thing to be ascertained is the intention of the testatrix. That is to be ascertained upon an examination of the whole will, which is one instrument, and in arriving at
For these reasons we think that the conclusion reached by- the learned justice at Trial Term as to the construction of this portion of the will was correct.
The judgment, therefore, must be affirmed, with costs to the guardian ad litem to be paid out of the estate, and with costs to all the other defendants to be paid "by the plaintiff personally.
■ Fan Brunt, P. J., Williams, Patterson and Parker, JJ., concurred.
Judgment affirmed, with costs to the guardian ad litem to be paid-out of the estate, and with costs to all the other defendants to be paid by the plaintiff personally.