Walter v. Tomkins, 75 N.Y.S. 557

Walter v. Tomkins

75 N.Y.S. 557 | N.Y. App. Div. | 1902

O’Brien, J.:

The action, which is one in ejectment, requires a construction of the will of plaintiff’s father and raises the issue whether or not the power of sale under which the property was conveyed by mesne conveyances to defendant Russell, was legally exercised so as to give good title.

The question thus presented on this appeal, relating to the exercise of a power of sale in a will, has so frequently been before the *26courts that it is unnecessary to refer specifically to the provisions of the Revised Statutes as now incorporated in the 3d subdivision of section 76 of the Real Property Law (Laws of 1896, chap. 547) concerning the subject, or to the numerous cases which have arisen under these provisions. The two views as to when a power of sale is limited and when general are discussed in Sweeney v. Warren (127 N. Y. 426) and M’Cready v. Metropolitan Life Ins. Co. (83 Hun, 526).

In the former, the provision of the will authorized the executors to sell “ for the purpose of discharging all ” debts, and when • the executors sold the land, both they and the purchaser knew that the. testator’s personal property was more than sufficient to pay such debt. It was- accordingly held, referring to the will, that by this provision the lots mentioned are not converted into money out and out, but the executors are empowered to convert them for-a specific purpose, to wit, the payment of the testator’s debts. When a testator authorizes his executors to sell and convert into money all or a part of his realty for a specific purpose, which fails or' is accomplished without a conversion, the power is extinguished and the land cannot-be sold by virtue of it or treated as money, but it. descends to the heir unless it is devised.” On the other hand, in the M’Cready Case (supra) we have an instance of a general power of sale. TherC, as here, the power was given in the 2d clause of the will, and .it was said: “ If we examine critically this second clause of the will, we ascertain that the power of sale is associated with the widest latitude of management and control of the whole estate. We find that it is a power created at the beginning of the instrument before any dispository provision is mentioned; that it stands separate from any other provisions of the will, and that it is not by necessary construction made inseparable from the trust which is created in the residuum of the estate.”

Regard being had to the character of the estate and the intent of the testator, as shown by the language employed in the will before us, we do not think,, as claimed by the plaintiff, that the power was a limited one, intended merely for the purpose of paying debts, as in. the Sweeney case, and one, therefore, to be exercised only by ■executors and not by trustees. Although the power to .sell follows closely after the provision directing the payment of debts* the *27intention of the testator was evidently to confer, as in the M’ Gready case, a general and full power of sale which, those named as executors and trustees had the right to exercise, not alone for the purposes of administration, but as prudence might dictate, during the continuance of the trust.

The argument against its being a general power, drawn from the fact that the testator subsequently directed them to sell the Westchester property before the arrival of his son at age, is we think without force; because, while it is true that the provisions show the wish of the testator to be that in any and all events the Westchester property should be sold before the time mentioned, this was in no sense inconsistent with, nor did it impair or cut down the complete and absolute power which had been granted in the previous portion of the will. That there is no inconsistency between the two clauses becomes evident if we annex to the clause containing the general power of sale the provision which is mandatory as to the sale of the Westchester property. ■ When read together they show that as to one the power given was discretionary and general, and as to the other it was mandatory and to be exercised for a specific purpose, namely, to convert that particular property into money and to hand the proceeds over to the son upon his attaining majority.

With respect to ■ all the other property, real and personal, the trust upon which it was to be held is clearly set forth; and, were it the intention of the testator that the identical property which he left was to continue in specie, it would have been no difficult matter for him to have so stated, and, instead of conferring a general power of sale, to have limited the power expressly to the payment of debts.

So far as appears from the complaint, there is nothing to show that; even for the purpose of paying debts, it was not necessary to sell the piece of property here involved; and the complaint is defective, therefore, in not alleging that there was a sufficient amount of personal property or that this particular piece of property need not have been sold for such purpose. This, under the plaintiff’s own construction of the will, was necessary to be stated in order to show that the exercise of the power of sale was invalid.

We do not desire, however, to place our affirmance of the judg*28ment appealed from on this narrow ground, but upon the broader ground that the power of sale by the language creating it — whether •the will established an express trust or whether there was given a mere power in trust — was not limited to the payment of debts, but was a complete and absolute power of sale which, when exercised, either for the purposes of administration or in the discretion of the executors and trustees to fulfill the purposes of an express trust or to carry out the wishes of the' testator, conveyed a good title to the grantee. For this reason, therefore, we think that the judgment sustaining the demurrer to the complaint was right, and should be affirmed, with costs.

Van Brunt, P. J., Patterson and Laughlin, JJ., concurred.

Judgment affirmed, with costs.