Boehmcke v. McKeon , 103 N.Y.S. 930 ( 1907 )

Hooker, J.:

The plaintiff is the record owner of certain real property and contracted ■ to sell the same to the defendant, who has refused to perform on the ground that in the year 1878, in an action to foreclose a mortgage upon the property, the plaintiff’s title coming through the purchaser at the foreclosure-'sale, there was a defect of parties defendant' in that the residuary legatees and devisees, under the will of Mary A. Jones,'deceased, who owned the property in question at'the-time of her decease, were' not made parties defendant, and that by reason ."théreof the equity .of redemption which the defendant supposed they had has not been cut off. The decision of this controversy requires an interpretation' of the will of Mary A. Jones, deceased. If by reason of the'language or the general scheme of that will there was an implied or express imperative power of sale to carry .out its provisions, .there was an equitable conversion of the real estate into personalty, and ■ the residuary legatees and devisees Under her" will were not necessary parties to the foreclosure suit. ".

After providing for the payment of her debts, for the construction ■ of a monument, on her burial lot and for a trust of certain specified real, property, her will provided (1) for several bequests of specific personal property; (2) for the payment of several annuities, and (3) for the payment of several bequests of absolute sums of money. The 20th paragraph of the will read : “ I direct that tlie annuities and yearly sums hereinbefore set forth shall be arranged and provided for as follows: My executors shall sell, mortgage or lease my real estate at such times as they think most, advantageous for the estate, and out of, the proceeds thereof they shall pay the. . said annuities.” By the 21st clause of her will the testatrix devised the residue of her estate by providing that it should be divided into five equal parts, one of which should go to her brother John, two of which should go to her sister, one of which should go to Walter Henry, and the remaining part should be invested by her "brother John, as trustee, who should pay the interest on that remaining part to her brother Charles and his wife as long as they might live together. She lastly nominated and appointed executors, giving-them “ full power to mortgage, sell or lease any or all of my real estate that they, deem practicable or necessary for the- purpose of carrying the provisions of this will' into effect.” Mary "A. Jones died leaving insufficient personal property to pa'yany of the legacies or annuities provided for in the will. '

The power of sale contained'in' the 20th paragraph of "the will, together with the general power of sale for'the purpose" of carrying into effect, must be construed as imperative; for without a sale it is doubtful whether the provisions in respect to annuities and bequests of specified sums of money could have been complied with. A power of sale need not be express, but when it is evident from the examination of the will that otherwise the testamentary scheme would be defeated, shell power may be implied. (Salisbury v. Slade, 160 N. Y. 278, 289.)

Because there was imperative power of sale, whether implied Or. expressed, in order to carry out the provisions of the Will, there was . an equitable conversion of the real estate, subject to this controversy, into personalty (Salisbury v. Slade, supra, 288; Delafield v. Barlow, 107 N. Y. 535), and the joining of the residuary legatees and devisees was unnecessary in the foreclosure.suit.

The judgment should be for the plaintiff, with costs.

Hírsohberg, .B. Jí, Jenks, Gaynor and Miller, JJ., concurred.

Judgment for plaintiff, on submission of controversy, with costs.