39 N.Y.S. 241 | N.Y. App. Div. | 1896
The question presented in this case arises upon consideration of the twelfth clause of the will of George A. Trowbridge, wlio at the time of his death was a resident of the State of Massachusetts. The court at Special Term held that the provisions of the twelfth clause of the will, so far as they tended to create a trust and give to the executors the power of sale of the lands in New York, were void because those provisions operated to suspend the power of alienation beyond the time permitted by our statutes. The correctness of this decision is disputed by the appellants, and whether or not it was correct is the only question presented upon this appeal.
By the twelfth clause of his will the testator devised all the rest, residue and remainder of his real estate, wherever situated, to the plaintiffs, who were appointed his executors, in trust, to hold and manage the same for the term of five years from the day of his death, and. for a longer term if in their judgment they thought best, giving instructions as to the maimer of management of the
In construing a will it is hardly necessary to cite authorities to the proposition that, so far as it attempts to dispose of real estate situate in the State of New York, its validity can only be determined according to the laws of that State. (1 Jarman on Wills [5th ed.], 1, note; Knox v. Jones, 47 N. Y. 389.) The construction of this will seems to be quite plain so far as the real estate in the State of New York is concerned. There is a devise in the first place to these trustees of that with all other real estate for an absolute term of five years, without any limitation whatever, with directions as to what shall be done with the income of the estate during that time. So far as the real estate in the State of New York is concerned, there is connected with it a power of sale, as there is with the real estate situated in the State of Massachusetts; but it is expressed in different terms from the power of-sale of the Massachusetts property. By the express terms of the will the power is given to the trustees to sell the real estate in Framingham at any time before the expiration of five years; and there is an express direction and requirement to sell it at the end of that time, or at the time of the death of the testator’s wife, if it shall occur after that time. But the power to sell the real estate in New York is differently expressed, and must necessarily be differently construed. The power to sell that estate does not come into existence until after the expiration of five years.
But it is claimed that necessarily by the terms of the twelfth clause of the will there was created an equitable conversion of the real estate, because there was an absolute direction- to the trustees to sell and distribute the proceeds to the children and grandchildren of the testator. To establish an equitable conversion of real estate into personalty by will, the will must direct the sale and the distribution of the proceeds as personal property absolutely for all purposes, irrespective of contingencies, and independently of any discretion as to whether there shall be a sale or not. (1 Jarman on Wills [5th ed.], *584; McClure's Appeal, 72 Penn. St. 414; Pom. Eq. Juris. § 1160.) Upon examination of this will it is not at all clear that there is such an absolute direction to the executors to sell the New York real estate as would be sufficient to work an equitable conversion. Indeed, there is no absolute direction, but the power of sale is in these words : “ I give them a like and the same power and authority.” That like power and authority must refer to the power and authority given with regard to the Massachusetts real estate in the preceding part of the same clause; and when we refer to those words we find the power and authority there given simply to sell if in their judgment it was best to do so; whereas with regard to the Massachusetts real estate, in addition to the grant of discretionary power and authority, there is a subsequent absolute direction at a certain time to sell without any regard to their discretion, which is absent from the will with regard to the New York real estate.
But passing that point, and conceding for the purposes of the construction of this will that there may be said to be in regard to
Although this devise to the trustees is void so that the title does not pass to them, it is claimed that it may operate under the statute as a power in trust, giving to them the right to sell the real estate at the expiration of the five years which is prescribed as the time when that sale shall be made. This construction, we think, cannot be maintained. The case in that regard is almost precisely like that of Garvey v. McDevitt (supra). In that case the testator attempted to devise the fee of his real estate to his executors for four years upon certain trusts, at the expiration of which time it was to be sold and the proceeds paid over to the Bishop of Raphoe upon certain other trusts specified in the will. The court, in construing the will, held that the devise to the trustees for four years was a suspension of the power of alienation not limited for a life, and was void. They held .also that as it was the intention of the testator to pass the title to the trustees, and as that was necessary to enable them adequately to exercise the power given in the will, they ought not to uphold the devise as a power in trust. With regard to the power of sale, the court held that it operated to suspend illegally the power of alienation, because there was no one in being who could release the right to the proceeds of the land before the time arrived for the execution of the power of sale so that an absolute title to the land and its proceeds could be made.
The same difficulty exists in this case. By the terms of the will the New York property was not to be sold until after the expiration of five years. The proceeds when divided were to be divided among the children and grandchildren of the testator who should be living at the time the several sales were made, none of which
It is claimed on the part of the appellants that the suspension of the power of alienation for a specified time, not measured by two lives in being, but by some prescribed period of time, is not necessarily fatal, and the case of Robert v. Corning (89 N. Y. 225) is cited to establish that proposition. An examination of that case, however, will show that the absolute power' of alienation was not suspended for any time, but that the will attempted only to prescribe the manner in which the power of sale should be exercised by giving a certain notice of the sale. So in the case of Henderson v. Henderson (113 N. Y. 1), a power of sale was given to the trustees, with a provision that they should not be compelled to exercise it until the lapse of five years from the date of the will. That case was clearly not within the prohibition of the statute, because the trustees had the right to exercise the power of sale whenever they saw fit. Neither was the case of Robert v. Corning. The delay there was merely incidental to the conversion of the property in the ordinary manner, and the will provided for such a notice of sale as would enable the trustees to obtain a fair price for the property. The case is distinguished in Cruikshank v. Home for the Friendless (113 N. Y. 331, 351), in which it is again adjudged that when the power of alienation is suspended for a time measured by years, and not by lives, it is invalid.
It is claimed by the appellants that pursuant to chapter 452 of the Laws of 1893 there could be no suspension of the power of alien
Upon the whole case we are of opinion that the judgment of the Special Term was right and must be affirmed, with costs to be paid by the appellants.
Barrett, Williams, Patterson and Ingraham, JJ., concurred.
Judgment affirmed, with costs to be paid by appellants..
