17 N.Y.S. 60 | N.Y. Sup. Ct. | 1891
This action was brought for the reformation of a contract for the sale of certain real estate in this city, and for a specific performance of such contract when reformed. The defendant Washburn is executor, and the defendant Richardson is executrix of the last will and testament of Benjamin Richardson, deceased. The latter in his life-time was the owner of the property in question, and by his will he devised this property, with other real estate, to these defendants, and to their successors in office, in trust, to sell the same, and to apply the proceeds in a certain manner, not necessary to be now specified. The power is in the form of a direction “to sell all said real estate from time to time as the same can be sold to advantage.” Both the executor and the executrix duly qualified, and have since acted. It is entirely clear that the title to the property in question was not vested in the executor and executrix. There was no such express trust as is authorized by law, and consequently the land descended to the heirs of the testator subject to the execution of the power. At the same time, it should not be overlooked that, as donees of the power, these defendants act under the will as individuals clothed with a personal trust, and not in their characters of executor and executrix. As was said by Duer, J., in Dominick v. Michael, 4 Sandf. 409: “An executor, as such, has no estate in the lands of the testator, and no authority to dispose of them. When he takes an estate, it is as a devisee: and when an authority, as the donee of a power. ” It is true that, by the will, qualifying as executor and executrix is made a condition of the donees acting under the power; but, having performed that condition, they act with regard to the real estate as devisees of the power thus created by the owner of the estate, and not under the authority conferred by the surrogate. Newton v. Bronson, 13 N. Y. 593; Conklin v. Egerton's Adm'r, 21 Wend. 430. The legal office of an executor should not be confounded “with that” (we quote from the opinion of Cowen, J., in the case last cited) “of one who is not so in any sense of the word, but who is the mere donee of a trust power; an authority which, so far from having any reference to the office of executor, might just as well have been conferred by the will on any other, not named as executor, and one who might have executed the power without probate or letters testamentary. ” It will also be observed that, although the direction to sell the real estate covered by the power is in a sense imperative, yet there is an element of discretion both as to time and advantage. This latter consideration is also adverted to in Conklin v. Egerton’s Adm'r; and Cowen, J., quotes approvingly the rule laid down by Sherman, J., in the Ohio case of Wills v. Cowper, 2 Ohio, 124, to the effect that even an ordinary power given by the will to the executor to sell and convey land—that is, a mere “power to do an act of ordinary sale”—is a personal trust, and that to render a sale under such a power good and valid the executor must personally assent and act. “The opinion in this case,” (Wills v. Cowper,) said Cowen, J., (page 442,) “is further material as bearing on an argument advanced for the defendant in error, which supposed that a mere power to do an act of ordinary sale was not the subject of that special trust and confidence which is considered by the law as so strictly personal that it cannot be delegated to another.”
The respondent claims that, even if the contract be not reformed in a technical sense, it should be treated as the contract of the non-signing executrix, for the reason that she consented to its being made, and also ratified it. Apart from the question of fact upon that head, which we will" consider hereafter, there are legal difficulties in the respondent’s way. The contract is not that of the estate of the testator, nor of the executor as one of the donees of the power conferred by the will. As it is under seal, paroi proof is inadmissible to show that it was not Mr. Washburn’s individual contract. It is entirely well settled that an executory contract under seal for the purchase of lands, made by the vendee in his own name, cannot be enforced as the simple contract of another, not mentioned in or a party to the instrument, on proof that the vendee named had oral authority from such other to enter into the contract, and acted as his agent in the transaction. Briggs v. Partridge, 64 N. Y. 357; Townsend v. Corning, 23 Wend. 435; Townsend v. Hubbard, 4 Hill, 351. In Spencer v. Field, 10 Wend. 87, it was held that even where the agent describes himself as agent or attorney for his principal the contract is the contract of the attorney, not the principal. Row, in the case at bar, there can be no doubt that as the power was vested in both executor and executrix, who had qualified and were alive, both were required to unite in its execution. 1 Rev. St. p. 735, § 112; Van Boskerck v. Herrick, 65 Barb. 250; Taylor v. Morris, 1 N. Y. 358; Berger v. Duff, 4 Johns. Ch. 368; Wilder v. Ranney, 95 N. Y. 12.
Nor was there any evidence of original authority; that is, of authority to execute this contract on Mrs. Richardson’s behalf. It is true that prior to the signing of the contract there had been conferences between Mr. Wash-burn and Mrs. Richardson with regard to a sale. She was then told of Murphy’s offer, and said that she would like to sell the lots, and that they had better sell them, if what Murphy offered was a fair price. These and similar expressions were proved. But there was nothing whatever in these conferences, or in the expressions there used, which authorized Mr. Wash-burn ultimately to act alone, or to bind Mrs. Richardson by any contract. The case on both of these heads is weaker than that of Ritch v. Smith, supra.
There are other and serious questions presented in this appeal, which, in the views already taken of the case, it will be unnecessary to consider. We may say, however, that the judgment for damages against the estate is not warranted even by the findings which were made at special term. The contract was not upon behalf of the estate, nor by the executor, as such. Even if Mrs. Richardson had signed the contract, (with Mr. Washburn,) that would not have bound the estate. It would still have been the contract of the donees of the power, and not of the executor and executrix, as such. Clearly the estate cannot be mulcted merely because the donees of the power fail to carry out their contract for the sale of real estate made in execution of the power. The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.