137 N.Y.S. 343 | N.Y. App. Div. | 1912
The premises involved, with considerable other real property, was owned at the time of the death of Aaron Clark by him and Harriet A Anderson in common. Clark devised his undivided interest in said property to his executor in trust,
Under the provisions of the- will the executor was vested with a naked power in trust, and the testator’s interest in the premises passed upon his death to his heirs or devisees, subject to the execution of such power. (1 E. S. 729, §§ 56, 58, 59; Id. 730, § 65; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52],.§§ 97, 9.9, 105; Matter of Arensberg, 120 App. Div. 463; Matter of Cooney, 112 id. 659; Sweeney v. Warren, 127 N. Y. 426; Weeks v. Cornwell, 104 id.. 325, 338; Chamberlain v. Taylor, 105 id. 185; Konvalinka v. Schlegel, 104 id. 125; Foersch v. Schmitt, 55 Misc. Rep. 608.) The power in trust was not well executed. Under it the executor was limited to an actual sale for cash, on credit, or part cash and part credit, and his powers did not extend to an exchange of property. (Powers v. Bergen, 6 N. Y. 358; Briggs v. Davis, 20 id. 15; Roome v. Philips, 27 id. 357; Russell v. Russell, 36 id. 581; Scholle v. Scholle, 113 id. 261, 274; Woerz v. Rademacher, 120 id. 62, 68; Moran v. James, 21 App. Div. 183.)
It is urged that the beneficiaries are estopped from asserting any claim to the premises. I do not think this contention good. There is a risk involved in taking title; the plaintiff is entitled, to-,a marketable title, and such right must be pro
The judgment must be affirmed, with costs.
Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred.
Judgment affirmed, with costs.