45 N.Y.S. 192 | N.Y. App. Div. | 1897
This action was brought to recover rent under the terms of a lease made between Adaline L. Gregg, as lessor, and Farmer, Little & Co., as lessees. The lessor died leaving a last will and testament, of which the plaintiff was appointed executor and trustee. The defendant corporation succeeded to the' rights of Farmer, Little & Co., and assumed all the obligations and covenants of the lease made to the copartnership. That lease was for a period of ten years from the 27th of January, 1887, at the yearly rental of $3,500, payable monthly, and for the rent due for the month of May, 1896, this action wras brought. The plaintiff claims the rent under the will of his testatrix. By the provisions of the sixth clause of that will the rents,, issues and profits of realty are, with other property, given in trust to the plaintiff and a mandatory power of sale of the real estate is contained in the same clause, the time and manner1 of sale alone being left discretionary. An out and out conversion of the realty into personalty was effected by that clause of the will; but the proceeds of the sale of the real estate are made part of a consolidated fund, which fund is created for the ultimate benefit of two daughters of the testatrix, after deductions that can only be ascertained and allowed on the settlement of the estate, when one-half of the1 fund will be distributable to one daughter or her heirs, and the other half (which was to have been held in trust for the other daughter for life with remainder to her children) will go to two 'grandchildren of the testatrix. The power of sale has never been exercised. The daughter, whose share of the consolidated, fund- was to be held in trust, has died and that trust fails. The. surviving daughter and the two grandchildren have served notice of an election to take, the realty as such, and the defendant sets up in its answer this alleged or attempted reconversion of the property from personalty intodand, and claims substantially that the plaintiff’s . right and title to the rent under the lease and now sued for , has
The courts below have treated the sixth clause of the will of the testatrix as if it presented the simple feature of parties, now entitled to the ■ proceeds of land to be realized on the execution of a power of sale, electing to take the land' instead of the proceeds. It was considered by those courts that, on the determination of a trust created for the benefit of one of the testatrix’s daughters, the whole estate mentioned in the sixth clause vested in the surviving daughter and the two grandchildren, subject to the power. of sale, and that the election of those parties to take the land instead of the proceeds of sale, put an end to the power; that as the real estate was not disposed of by the executor under the power contained in the will, and as there was no lawful purpose for which a sale was now absolutely required, there was no obstacle to- a reconversion of the same by the parties in interest. The general rule relating to a reconversion of land into money or money into land is well understood, and is illustrated by the cases cited in the opinion of the Appellate Term. That rule is, “ that where money is given to be laid out .in land to be conveyed to a person, though there is no gift of the money to him, yet in equity it is his and he may elect not to have it laid out; and so, on the other hand, where land is given upon a trust to sell and to pay the proceeds to a person, though no interest in the land is expressly given to him, in equity he is the owner and the trustee must convey as he shall direct.” (Leigh & Dalzell on Eq.
The provisions of;the sixth clause are as follows, viz.:
All the rest, residue and' remainder of my real and personal -estate, wheresoever and whatsoever it may be at the time -of my decease; and rights, claims, dues and demands, whether now held or hereafter obtained by. me (that would include certain claims against*443 a third daughter of the.testatrix, as provided in the tenth clause of the will), I do hereby give, devise and bequeath unto Charles C. Smith, Esq., my executor hereinafter named, to have and to hold the same, but, nevertheless, in trust, and upon the uses and trusts and for the purposes provided in this my will. And I do hereby fully authorize and empower my said executor and trustee, to manage, lease, mortgage and to sell and dispose of all my real estate or any part thereof, or any rights therein, at public or private sale, and at such time or times, and in such manner as he may deem proper, * * * and to divide and apportion the rents, issues and proceeds of the sale thereof, after deducting the charges, expenses and bequests mentioned and referred to in this my will as a charge upon, and as may occur in the management, disposition and settlement of, my estate in two equal parts, portions or shares, one of which equal parts, portions or shares of said rents, issues and sale I hereby give, devise and bequeath to my daughter Mrs. Josephine Hillyard, and her heirs and assigns fe^ver, to be paid as follows: I direct my said executor and trustee to pay to her or them six hundred dollars of the rents of said real estate during and for each and every year until the same is sold, and then whatever may remain' due of said rents and the proceeds of said equal' part, portion or share of said real estate when sold, less the aforesaid charges, expenses and bequests, to pay the same to her or them; and the other of said equal parts, portions or shares of said rent, issues and proceeds of said sale I direct my said executor and trustee to pay six hundred dollars of the rents thereof to my daughter Mrs. Minnie Gowing, during and for each and every year until said real estate is sold as aforesaid, and then to invest and, if need be, reinvest whatever, may remain due of said rents and the proceeds of the sales of said last-mentioned part, portion or share, less said charges, expenses and bequests, and the sum of five hundred dollars to be allowed to her out of said proceeds, and to pay the interest & income of the balance thereof to her during and for the remainder of her natural life, and upon her decease whatever may afterwards become or fall due of said rents, and the balance of said proceeds of said sale so invested I give and bequeath to her children and my grandchildren (naming them), to be equally divided between them, and to belong to them and their heirs forever.”
I think the effect of the sixth clause of the will is to combine all the residuary estate into a consolidated fund, and that whole residuary estate is to be considered as personal estate from the death of the testatrix, and that the rents and profits of the real estate and the
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Judgments reversed, exceptions overruled and judgment ordered for the plaintiff as directed in the trial court, with costs.