136 N.Y.S. 990 | N.Y. App. Div. | 1912
Lead Opinion
There is no devise of the little estate left by the testator to any of his children. He preferred to have the premises sold and the avails distributed after the death of his widow and, therefore, directed that such mode be adopted. The gift was of money, not of land; and because of the direction of the testator to sell the real estate, it became personal property. In no other way could the distribution of the money be made, and so there was what' is known as an equitable conversion of this small,farm into personalty. (Meakings v. Cromwell, 5 N. Y. 136; Greenland v. Waddell, 116 id. 234, 240 et seq.; Cahill v. Russell, 140 id. 402; Salisbury v. Slade, 160 id. 218.)
The will was drawn by a farmer, and it is a reasonable inference that he did not appreciate the importance of endowing the executor with distinct authority to sell the premises. The omission, however, does not impede the primary purpose of the testator to convert the land into personal estate. The sale was necessary in order to make effective the bequésts and the implied power to sell and distribute was consequently vested.in the executor. (Cases cited.)
yo trust is created and no trustee is required in order to sell the land. The will itself converts the property into personalty,
Nor does the death of the executor before executing the power of sale prevent the consummation of the intention of the testator. There was no discretionary authority to sell. The direction was mandatory, positive, and the sale of the land was essential to the distribution of the estate. The executor, therefore, possessed the power to sell by virtue of his official authority, and no special or personal confidence was reposed in him separate from his office. An administrator with the will annexed could sell the land and distribute the avails in compliance with the imperative direction of the testator. (Code Civ. Proc. § 2613; Clifford v. Morrell, 22 App. Div. 470; Carpenter v. Bonner, 26 id. 462; Ayers v. Courvoisier, 101 id. 97; Mott v. Ackerman, 92 N. Y. 539, 552.)
Or, it may be, a person appointed by the court for that purpose could exercise the power. (Royce v. Adams, 123 N. Y. 402, 405; Cooke v. Platt, 98 id. 35.)
The 2d clause of the will postpones the sale of the land until after the death of the wife of the testator, and the division is among his “ children that are living at that time, share and share alike.” It is the claim of the respondent that the title became absolutely vested at the time of the death. If so, Thomas Williams was one of the owners and his interest; on his death, passed to his heirs at law, including the plaintiff. If there was an equitable conversion of the real estate into personalty there was no devise and no vesting in any of the beneficiaries. In the second place, even if the land retained its identity as such, I think the clear intent of the testator was to limit the ultimate beneficiaries to those living at the death of the wife. If there was a vesting it was subject to be divested when the period of division was reached. To be sure, the construction is favored which permits the vesting of devises as closely as possible after the death of the testator.. (Connelly v. O’Brien, 166 N. Y. 406; Biker v. Gwynne, 201 id. 143, 149, Van Deusen v. Van Deusen, 138 App. Div. 357.) The rule is
In the will we are considering the intention of the testator is explicitly stated and limits the division of his property to the children living at the death of .his wife. While the testator recognized equal obligations to his children, evidently he did not wish any further carving up of his small estate.
We are well within the authorities in holding even if there Was a devise of the land it did not become effective until the death of the wife, and then vested only in the children of the testator living at that time. (Patchen v. Patchen, 121 N. Y. 432; Wright v. Wright, 140 App. Div. 634.)
The conclusion reached, therefore, is that the plaintiff has no title in the premises described in the complaint.
The interlocutory judgment should be reversed and the complaint dismissed, with costs to the appellants in this court and to the appellants and special guardian in the court below.
All concurred, except McLennan, P. J., who dissented in an opinion.
Dissenting Opinion
As I interpret the meaning of the will which is the subject of this litigation, the testator gave to his wife by absolute bequest all his household goods and personal property to be her own and in lieu of dower. He also gave to her the use of his homestead so long as she should live' which, as appears, consisted of about fifteen acres of land situate in the village of Sheridan, IST. Y. By the 2d provision of the will it is provided:
“ Second. I declare that after the death of my wife, that the homestead be sold and the proceeds be equally divided between my children that are living at that time, share and share alike.”
Eeally, the only question involved here is whether the words “ at that time,” used in the 2d clause of the will, refer to the
In the case of Lewis v. Howe (174 N. Y. 340) one of the questions at bar was whether a remainder vested in an adopted daughter at the death of the testator or whether a devise to her was defeated by her death before the death of the life tenant. Judge O’Brien, writing the opinion for the court, said (pp. 346, 347): “The question now is whether the remainder vested in the adopted daughter at the death of the testator or was the devise to her defeated by her death before the life
As before suggested, if the words “ at that time ” in the 2d clause of the will are given the meaning suggested by the majority of the court, then it must follow, if all testator’s children had died before the death of the widow, that he, the testator, would have- died intestate as to the homestead property, and also that if all of said children save one had so died, such survivor would have taken the avails of all of such homestead property to the exclusion of the issue of the deceased children. It does not seem to me under the authorities that that can be the proper construction of that provision of the will. I think the learned surrogate properly held that the words used in the 2d clause of the will, “ at that time,” had reference to the time of testator’s death and that the ownership of the homestead vested in his children as of that date and that at the termination of the life estate each of the children then living and the issue of those who died were entitled to participate in the distribution of the proceeds of the sale of such homestead.
Assuming, for the purposes of this discussion, that the words " at that time ” referred to the time of the death of the widow, it is my opinion that those words had reference only to the time of the possession and enjoyment of the devise and that the ownership of the homestead property vested in the children at the time of the death of the testator, subject only to the life estate of his widow..
I, therefore, conclude that the decree of the surrogate was correct and should be affirmed, with costs.
Interlocutory judgment reversed and complaint dismissed, with costs in this court to appellants and with costs in the court below to the special guardian and to the appellants.