5 N.J. Misc. 1087 | New York Court of Chancery | 1927
The surviving executor and trustee under the last will and testament of Mary Ann Smith, deceased, entered into a written contract with the defendant to sell him a piece of land belonging to the estate. The bill is filed to compel the defendant to perform his contract, and he is willing to do so, hut contends that the complainant cannot give him a marketable title, asserting that the executor has not the power to sell. That depends upon the true construction of the will. The testatrix, after some specific bequests and devises, by the fifth clause of her will, which is too long to set out in full, devised and bequeathed all the rest, residue and remainder of her property to her executors upon trust to hold the principal of her estate during the lifetime of her six children, and upon the death of the survivor to divide it as hereinafter stated. Tn the meantime the income was to he paid to the children and one Catherine Burke, in equal shares, the chil
There is, it is true, no words expressly authorizing the sale of the real estate, but full effect could be given to the testatrix’s direction to divide the estate — the real and personal property as -a unit — at the time' fixed by her for its distribution unless there was a conversion of the realty. -The testatrix obviously contemplated that the division should be in money-shares, and to that end that the real estate should be sold.' The power of sale < in the trustee is clearly implied. This view is supported by the cases in this state construing similar provisions in wills. Executors of Van Ness v. Jacobus, 17 N. J. Eq. 158; Wurts v. Page, 19 N. J. Eq. 866; Haggerty v. Lanterman, 30 N. J. Eq. 37; Belcher v. Belcher, 88 N. J. Eq. 126; Moor v. Wears, 87 N. J. Eq. 459.
The complainant can unquestionably convey a marketable title and a decree that the contract be enforced will be advised.