130 Misc. 12 | N.Y. Sup. Ct. | 1927
' Fenton E. West died on March 12, 1926, leaving a will dated April 17, 1924, in which the plaintiff and the defendant George B. West are named as executors. This controversy involves a construction of that will and also the title to the real property situated at 16 Marion avenue in the city of Glens Falls. The testator in that instrument, after various bequests, made the following disposition of the residue of his estate: “ All the rest, residue and remainder of my estate, both real and personal of every name and nature and wheresoever situated, of which I shall die seized or possessed, I give, devise and bequeath to my executors hereinafter named, to convert the same into money, giving and granting unto them full power and authority to sell and dispose of same for the following purposes to wit: That the whole or principal sum arising or accruing from the sale of said residue and remainder of my said estate to be divided as follows: One-half of said principal sum to my nephew, Walter S. West, of the town of Newcomb, Essex County, N. Y., and one-quarter of said principal sum aforesaid to each of my nephews, Clinton A. West of Igerna, Warren County, N. Y., and George B. West of Long Lake, Hamilton County, N. Y., to be theirs forever.”
The defendant West asserts that he is the absolute owner of the premises in question. His title depends solely on the validity of the deed to him of these lands from the defendant Burke. On April 8, 1921, the decedent purchased these premises from Helen M. Bartholomew and paid the consideration therefor. The deed was delivered to him but he took the title in the name of Richard T. Mootry, who never asserted any claim to the premises, and decedent caused the conveyance to be recorded in the Warren county clerk’s office on April 9, 1921. When this land was purchased and during its subsequent history, the decedent was married but was living separate and apart from his wife and it is conceded that title was taken in the name of Mootry so that the wife’s inchoate right of dower would not attach. By an unrecorded deed dated September 13, 1921, Mootry and wife conveyed the property to West. After the latter’s death this deed was discovered
The defendant West bases Ms title on the deed from Burke to Mm and relies on section 94 of the Real Property Law, and in his counterclaim seeks an adjudication in Ms 'favor. The plaintiff contends that tMs deed is inoperative because of non-delivery and that the decedent was the owner of the premises at the time of his death and that title has descended under the provisions of the will quoted to the defendant, to Walter S. and Clinton A. West as tenants in common.
A delivery of a deed is essential to the transmission of title. It is the final act without wMch all other formalities are ineffectual. WMle no particular ceremony is necessary to effect delivery and wMle the details of the transaction are not important, there must be a mamfest intention of the grantor to make such a delivery coupled with a complete surrender and parting with the control of the deed by the grantor, and it must pass under the dominion of the grantee or some person in Ms behalf. While it is not imperative that the grantee should be present at the execution in order to have such a delivery of the instrument made as will give it operative vitality and effect, it is necessary that it "should be placed witMn the power of some other person for the grantee’s use or that the grantor should uneqmvocally indicate it to be Ms intention that the instrument shall take effect as a conveyance of property in order to have it produce that result. The evidence is undisputed that no delivery of tMs deed was made to the defendant West or to any person on Ms behalf. Concededly it was retained by the decedent and apparently its existence was unknown to the defendant until after the former’s death.
Section 94 of the Real Property Law does not aid the defendant.
According to the provisions of the will the executors are directed to sell the premises. A trust to sell is one of those authorized by statute but if unaccompanied by the right to receive the rents and profits, as in this case, it vests no title in the executors although it is valid as a power. (Real Prop. Law, § 97; Chamberlain v. Taylor, 105 N. Y. 185; Manice v. Manice, 43 id. 303.) This will indicates that the deceased intended to create a trust. He evidently expected that the devisees named should have his residuary estate in the proportions therein specified. Giving the property to his executors to sell and distribute the proceeds did not give them any estate. A duty placed upon executors to sell and distribute does not create a trust under section 96 of the Real Property Law but only a power in trust under section 97. The power conferred upon the executors may be exercised as a power in trust and the title descends to the devisees subject to the execution of that power. Where real property is directed to be sold and the proceeds distributed the parties beneficially interested may, if competent and of full age, elect to take the property and thus defeat the power of sale conferred upon the executors. Neither is the existence of a naked power of sale in the executors for the purpose of a division of the proceeds a bar to an action by the devisees for partition. (Mellen v. Banning, 72 Hun, 176.) The power of sale contained in this will is clear and unambiguous and leaves no doubt as to the intention of the testator. The will does not contemplate that the executors should hold the real estate or. that they should delay the administration of the estate longer than reasonably necessary to convert it into money for the purpose of making the division which the testament directs. The exercise^ of that power by the executors would secure a division of the avails among the parties in interest without the delay and expense of judicial proceedings and evidently the power given by the will was intended to accomplish that purpose. The avails of the land instead of the land itself would, in that case, pass under the residuary clause to the devisees named and could at once be divided so as
Plaintiff is, therefore, entitled to a judgment determining the title to this property, construing the will in accordance with these views, directing a sale of the lands and a distribution of the proceeds among those entitled thereto, with costs payable out of the estate.
Judgment is hereby directed accordingly.