58 N.Y.S. 860 | N.Y. App. Div. | 1899
The question submitted is the right of the plaintiff to a specific performance of a contract whereby he agreed to sell and the defendant agreed to buy a certain tract of land. The defendant’s refusal to carry out the contract is based on the alleged infirmity of the plaintiff’s title. Michael Staff died in 1860, seized in fee simple absolute of the premises, and leaving him surviving a widow and four children, his only heirs at law. He left a will which, so far as it relates to the land which is the subject of this controversy, is as follows:
“ And as touching ail the rest, residue and remainder of my estate, real and personal and mixed, of whatsoever kind or nature the same may be, in the county of Wayne aforesaid, and in the cities of New York and Brooklyn, in the State of New York, or elsewhere, I give, devise and bequeath the same unto my beloved wife, Sarah S. Staff, to have and to hold the same to her, her heirs and assigns forever.
“ It is my wish and request that my said wife shall, before the time of her death, make and execute her last will and testament, and therein give and bequeath the property herein given and bequeathed to her to my children hereinbefore named, share and share alike.
“Should it become necessary to sell any or all of my real estate for the purpose of paying any of my just debts, I hereby order and direct that my executrix hereinafter named shall sell and dispose of said real estate or such a portion of the same as may be necessary, to such person or persons as she may see fit, and for such price or prices as may be reasonably gotten for the same, and for that purpose I do hereby authorize and empower my said executrix to sign, seal and execute and acknowledge such deed or deeds of conveyance as may be requisite and necessary for the granting and assuring the same to the purchaser or purchasers thereof in fee simple.”
In 1866, the testator’s widow, by her individual deed, conveyed the premises to one Benjamin Bryer, from whom, by mesne conveyances, the plaintiff has acquired title. The defendant contends that, under the will of Michael Staff, the widow took only a life estate with remainder to her children, or at least that the question is sufficiently doubtful to justify him in refusing to take title. It was stated on the argument, although the fact does not aprpear in the case, that the children of the testator or some of them survived the widow.
Bor is the power of sale given by the will to the widow, as executrix, at all inconsistent with the previous devise to her of the fee. Such powers are frequently found in wills which contain direct, devises. In fact, it may be said that a prudent lawyer will generally insert such a power in the will of a man in active business, so that,, if desired, his real estate may be disposed of promptly after his. decease. If there should be doubt as to the extent of the claims
In the light of the decision in Clay v. Wood (supra), we do not. regard the title of the plaintiff as being subject to sufficient doubt, to 'render it unmarketable. There should, therefore, be judgment for the plaintiff on the submitted case, with costs.
All concurred.
Judgment for plaintiff on agreed statement of facts, with costs..