201 N.Y. 210 | NY | 1911
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *212
Under the will of Maria Louisa Adelaide Peyrot, deceased, her executors were given full power in their discretion to sell, convey and mortgage any or all of her real estate "for thepurpose of carrying out the provisions of this instrument." Assuming to act under this power the executors sought to mortgage the real estate for the purpose of raising funds to loan or advance to the heirs, and with that in view the defendant entered into the contract set forth in the preceding statement of facts. At that time the debts and specific legacies had been paid and, therefore, the necessity for the exercise of the power no longer existed. The disbursing of moneys to the heirs, except upon the final settlement of the estate, was clearly not a purpose for carrying out any of the provisions of the will. The will contains no directions or indication that such a purpose was contemplated by the testatrix. "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. * * * Neither can be exercised for a purpose not intended." (Hetzel v. Barber,
The question thus arises whether under such circumstances the plaintiff is entitled to remuneration. It has been settled by repeated decisions of this court that where a broker is employed to find a purchaser for real estate, and procures one ready, able and willing to pay, he is entitled to his commissions although the sale is prevented by defects in the vendor's title. (Knapp
v. Wallace,
Although the plaintiff knew the defendant was assuming to act purely as executor, this action was properly brought against the defendant personally. The latter had no power to bind the estate by such a contract. "The general rule is well settled in this state that executors or trustees cannot, by their executory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus create a liability not founded upon the contract or obligation of the testator." (O'Brien v. Jackson,
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur; CHASE, J., concurs in result, on ground that it does not appear that the mortgage was required for the purpose of the will.
Judgment reversed, etc.