106 N.Y.S. 99 | N.Y. App. Div. | 1907
I think that the intendment of the testator was an express trust in the executors; not a power, in trust. (Spitzer v. Spitzer, 38 App. Div. 438; Hubbard v. Housley, 43 id. 129; affd., 160 N. Y. 688; Staples v. Hawes, 39 App. Div. 548.) I think that the provision empowering the executors to sell “at such time within five years after my decease as they may be able to obtain the' sum of fifty thousand dollars in the aggregate therefor,” is not merely advisory but is a limitation, so that they have no authority to sell during that period for a less price. Fowler, on Beal Property Law of the State of New York (2d ed. 479, citing authorities), writes: “ While a peremptory power .of sale does not,per se, suspend the power of alienation, á'power to sell and distribute; does not necessarily relieve a-trust limitation, óthenvise invalid, from the effect of suspending the • power of alienation. So if the execution of even a, power of sale is, by any limitation, unduly postponed, such limitation violates- the rule' against a perpetuity, and is void, unless, the power is of such a nature as to be presently extinguished or merged.- Where the power' may be released by a. person entirely sui juris, it would seem to create a perpetuity.” If the power of alienation w'aá' suspended for a term not measured by lives, then the provision is void. (Brown v. Quintard, 177 N. Y. 75, 82; McGuire v. McGuire, 80 App. Div. 63.) It is bad if, at the time of the creation of .the trust,- there, was á possibility that there could be no sale for the period- of five years. Nelson, Oh.. J., in Hawley v. James (16 Wend. 61, 120), says: “ Now if in either aspect the limitation of the estate might suspend the power of alienation beyond the timé
- I am of opinion that the power of sale cannot be' defeated or annulled. A specified part of the proceeds of a sale is to be held by the -executors in trust for the lifetime of the testator’s son George. Hence there cannot be a present right in existence to dispose of the entire interest. (Garvey v. McDevitt, 72 N. Y. 556.) In addition, -after the-gifts to his children John and Sarah, and the making of
The scheme of the part of the will under consideration-coptemplated the creation of a fund which required the. sale of- the realty'. specified.- It is true that the. power, of sale was limited for a period by the provision in question, but ait the expiry of that, period the the power of sale was. imperative. All agree that the provision' for accumulations meanwhile is bad. The question is whether tlie -provisions are' so articulated with the scheme that the scheme itself must fail. If. we eliminate the void provisions as to the sale (that, for accumulations is but incidental • to it) we cpfi Off a provision-designed not to -defer the scheme but. to secure' a particular price.
Hirschbero, P. J., Woodward, Hooker and Miller, JJ., concurred. • . •
Judgment modified in accordance with opinion of Jenks, J., and-as so modified affirmed, with costs to ail parties payable o.ut of the estate. Order to-be settled on notice before Mr. Justice Jénes