110 Misc. 52 | N.Y. Sup. Ct. | 1920
This is an action brought to partition real estate owned by Harold F. Simonds at the time of his death. Harold was survived by his’ grandmother and an aunt on his mother’s side, and by an uncle and aunt and first and second cousins on his father’s side. The plaintiff here is the uncle. Four parcels of land
Oatman S. Simonds died December 19, 1916. He left a will, which has been duly probated, in which he named his son Harold and his wife as his executors and trustees. Harold, his only son, died intestate and unmarried October 14, 1918. Harold’s mother had died earlier and Oatman S. Simonds had married his first wife’s sister, who had survived him. By the fourth clause of his will Oatman S. Simonds gave the entire bottling works business, the real estate, equipment and all of the assets of the business, “ the capital invested therein, together with my automobile, horses, wagons and all the chattels connected therewith,” as he was carrying the business on, to the son and widow in trust to carry on “ the business during the natural life of my said wife, or for such period of time as they deem advisable and can agree upon,” “ along the lines that the same has been conducted by me,” the net
The wife and son did discontinue the business on or about September 24, 1918. Immediately the son and widow began negotiating for a sale of the personal property. They had discussed the disposition of the rest of the property, including a lease of the real property. It does not appear that they had then consulted any attorney, and it probably had not yet been brought to their attention that they were required to sell this property. Twenty days after the discontinuance of the business, the son died, leaving the bottling works property unsold. ' There had been no unreasonable delay on the part of the executors in making the sale provided for in the will.
The purpose of the testator was to bestow all his property on his wife and son; he carefully provided for his wife during her life and gave all that remained of his property at her death to his son, without provision for any collateral relatives. He did not attempt to control his property further. He did not contemplate that the son might die first and made no provision against such happening. Two of the pieces of land, not of considerable value, he gave absolutely to his son. He provided a home for the wife and son in the residence with all of its furnishings. He provided an income and support for both from the bottling works business and property. To this end he made two distinct provisions: First, he had the bottling works business, which he thought valuable; this he hoped would support his wife and son. He desired that it be continued as long as profitable. So he gave the business and all the property, real and personal, used in connection with it, in trust to his wife and son to carry on the business, and probably thought it might be wise to lease this business and property. He
There were then two separate trusts created, or attempted to be created. The first trust was for the sole purpose of carrying on the bottling works business, and this expired by its own terms as soon as the business was discontinued. This was apparently a void trust because the trustees and beneficiaries were the same persons. Greene v. Greene, 125 N. Y. 509. Under the statute (Eeal Prop. Law, § 92) under such circumstances the legal estate of the trustees and the beneficial interest merge and result in a legal estate in the beneficiary “ of the same quality and duration, and subject to the same conditions, as his beneficial interest.” Greene v. Greene, supra. The beneficial interest ceased when the business was “ closed out.” Whatever estate by merger therefore went to the -widow and son in this bottling works property expired with the termination of the business (Weeks v. Frankel, 197 N. Y. 304, 311), and this occurred before the matter was brought to the attention of the court. Therefore this case is to be considered as if such trust had never been attempted. The second trust would come into existence after the power of sale had been exercised and not otherwise. The corpus of this trust was to be entirely personal property, namely: one-half of the proceeds of the sale of the bottling works property. The
Whether or not partition of this real estate may be had in this action depends upon whether or not the power of sale in the will operated to convert the realty into personalty. This question is to be determined by the intention of the testator as disclosed by the provisions of his will and by the circumstances. The intention of the testator, if discoverable and lawful, shall prevail and be effectuated. Greene v. Greene, 125 N. Y. 509. Where a direction to sell is imperative, or the general scheme of the will requires a conversion, though the power is not imperative, the power of sale effects a conversion. Hobson v. Hale, 95 N. Y. 588, 607. Otherwise the land will pass as. such. 13 C. J. 864; Parker v. Linden, 113 N. Y. 28, 37; Chamberlain v. Taylor, 105 id. 185. In Greene v. Greene, supra, 512, Judge Gray said: “ The present case illustrates the peculiar character of cases involving the construction of wills. Each case must be de- . termined upon its own. particular facts and features, and former precedents are rarely availing in the office of construction. The supreme importance of giving effect to the last will of the decedent requires the court to search out his intention and to validate his scheme, unless to do so would contravene the statute. The endeavor is to find a way of upholding the will, not of breaking it down; and thus in every case the inherent purpose, if lawful, should be effectuated through what
The power of sale is a valid power, and we construe it to be an imperative direction to sell the property. March v. March, 186 N. Y. 99, 101, 104; Lent v. Howard, 89 id. 169; Hope v. Brewer, 136 id. 126, 134. The language used by the testator is appropriate for an imperative direction to sell and not for a privilege or option. No conditions are attached. If the business is “ closed out,” the whole bottling works property is to be sold. Nor do I find anything in the will inconsistent with the intent that the direction to sell should be imperative. The suggestion of a lease does not impress me as being a substitute for, or the alternative of, a sale. The leasing mentioned is of the entire “ bottling works plant and the real estate connected therewith, ’ ’ as one property, and is consistent with the thought that the son and wife might lease the business as a going concern, while it is inconsistent with the direction to sell as soon as the business was discontinued. The residuary clause of the will is not inconsistent with this construction. If the bottling business had not been discontinued, at the time of the death of his wife, then the direction to sell never would have become operative and he naturally desired to dispose of the residue of his estate, including the bottling works property.
The general scheme of the will likewise requires a sale.
There are no provisions beneficial to the wife from the bottling works property, save two:
(1) Before sale is had she has one-half the net proceeds of the going business.
This requires that the sale directed should he had, else the purpose and scheme of the testator cannot be realized. This case is thus sharply distinguished from that in Parker v. Linden, 113 N. Y. 28, cited by plaintiff. The result intended could not be accomplished by a sale of this real estate in this action. By so holding we in effect would be making a new will for the testator.
Thus both the expressed intention of the testator and the general scheme of the will require a sale of the bottling works property and a conversion of the real estate. This holding is not in contravention of any statute. I find no reason why the purpose and intent of the testator should not be effectuated.
I am aware that this disposition of the case causes the proceeds of the bottling works real estate to pass as personalty and thus to go to the next of kin of Harold Simonds, namely: to his maternal grandmother, rather than to blood relatives of his father. What the testator’s intention would be under the unexpected circumstance that his son died before his widow, he has not expressed, and we cannot assume to speak for him. But we may make effectual his expressed intention. Since the son died intestate, his personal property is disposed of by statute, not by the determination in this case.
Plaintiff in this action and the collateral relatives of Harold on his father’s side have no interest in the bottling works real property and it cannot be sold in this partition action.
The plaintiff urges that, even though the power of sale is mandatory, all of the parties interested have
The plaintiff is entitled to judgment for partition of
The transfer tax has not been assessed or paid. This does not require a dismissal of the action. The tax is upon the right of succession; upon the transfer. Matter of Penfold, 216 N. Y. 163. It is not a tax upon the transfer of the entire estate, but, if there are several legatees, upon each separate devise or bequest, and the tax on each bequest or devise is a lien upon that bequest or devise. Tax Law, § 224. But a tax upon a devise is not a lien'upon another devise or upon a bequest, though the two go to the same person. The plaintiff here may prosecute his action. In order to give a good title, however, at the sale, he must (1) secure an appraisal of the estate and pay the tax, or provision must be made in the judgment directing the referee to pay it; or (2) procure from the officer charged with the collection of the tax a consent or release of the property pending the appraisal. Smith v. Browning, 225 N. Y. 358, 367.
The owner of an easement is not a necessary party to a partition action, unless it is intended to attack the validity of the easement. 'The pleadings in this case indicate no such intent and it is not necessary to bring in other parties.
Ordered accordingly.