Bender v. Paulus , 105 N.Y.S. 240 ( 1907 )

Woodward, Jenks, Hooker, Rich and Miller,- JJ., concurred.

The following is the opinion of Mr. Justice Wilmot M. Smith :

Smith, J.:

If the entire devise of the premises in question was invalid because of the lack of capacity of all the beneficiaries for whose benefit the devise was made to take the same, there can be no question that the trust estate and power of sale given the executors would also fail,, because the object for which these provisions of the will were made had failed. (Jones v. Kelly, 170 N. Y. 401.)

In the case under consideration a devise of a portion of the premises was Valid, so that the trust estate and power of sale attempted to be created by the will, so far as they concerned the portion of -the premises so devised, were valid.

. A person who takes as heir at law premises which descended to him as intestate property by reason of the failure of the testator to make a valid disposition thereof -by his will, takes such property subject to any burden imposed thereon by the necessity of carrying out to the best advantage the valid provisions of the will. (Downing v. Marshall, 4 Abb. Ct. App. Dec. 662.)

In Jones v. Kelly (supra) Chief Judge Parker recognizes this principle in his opinion (at p. 409), where he says, “ the real estate niay be so situated as to require a sale of all of it in order to execute the valid portions of the will, and thus it will be turned into money in fact, but for the purposes of disposition under the statute as intestate, property it will retain its character as real estate.”

I -must assume in this case, in the absence of evidence to the contrary, that, the land in question was so situated as to require a sale of. all of' it in order to enable the executors to. execute the valid devises of a portion of it to the best advantage of the devisees.

' I, therefore, decide that the executors had authority to sell the whole premises in order to carry out the valid devises of a portion thereof, and that the plaintiff took the premises subject to the burden that such power of sale might be properly exercised, and that she is entitled only to her share of the proceeds of the sale, taking' the same with its character as real estate unchanged by its conversion into money.

It follows that the complaint should be dismissed upon the merits, with costs.