173 N.Y. 332 | NY | 1903
I think the determination by the Appellate Division was correct. The power of sale given by this will cannot be regarded as an express direction to sell the testator's real property for the payment of his debts and, therefore, it not being imperative, its exercise could not be compelled by a creditor. Section 2759 of the Code of Civil Procedure provides that a decree directing the disposition of real property can be made, only, where "the property directed to be disposed of was not effectually devised expressly charged with *335 the payment of debts, or funeral expenses, and is not subject to a valid power of sale for the payment thereof." The statute is explicit. There is no mention by the testator of his debts. With a will as bare as is this one, a purpose to charge the payment of debts upon the real estate would have to rest on implication and inference. This is not what the statute intended and we think it a safer rule, in the interest of creditors, as, also, for greater certainty of title, to hold that the statutory requirements, if not literally followed, must be met by clear testamentary expressions, in order to deprive creditors of their statutory right to a judicial sale.
For these reasons, the judgment should be affirmed, with costs.
PARKER, Ch. J., BARTLETT, HAIGHT, MARTIN, VANN and WERNER, JJ., concur.
Judgment affirmed.
