Hess v. Hess , 117 N.Y.S. 555 ( 1909 )

Laughlin, J.:

The action is brought for tbe construction of tbe last will and testament of George Hess, deceased, which was duly admitted to probate by the Surrogate’s Court of the county of Hew York on the 27th day of January, 1880. Tbe question presented by" the-appeal is whether tbe will conferred upop the executrix and the executors authority to sell tbe real property left by" tbe decedent prior t.o tbe period of distribution and expiration of the trust prescribed in'the will. It appears that the estate has all-been administered with the exception of a parcel of land known as Hos. 5, and 7 Attorney street,- borough of Manhattan, Hew York, upon which stand two tenement buildings. These buildings aré old and dilapidated, and the net income therefrom is only $1,500 per annum. They are in need of extensive repairs, so much so that the tenement house department of the city, pursuant to the authority vested in it by law, lias ordered that repairs be. made upon the premises winch will cost more than $3,000.- The executrix and executors are unable to comply with the order of the. tenement house department for lack of funds, and if they be not permitted to sell the preñases,.it is probable either that repairs will be made and payment enforced against the property or the trustees will be obliged to. suffer the premises to stand vacant. . A sale, therefore, would be advantageous to all parties in interest; both cestui que trust and remainder-men. Some of the remaindermen, however, are infants. The testator, in the 1st dispositive clause of his will, after directing the payment of his debts and funeral '.expenses, -gives, devises and bequeaths all of his ■ property, including the wholesale furniture business which he was conducting, to liis executrix and executors “in trust, nevertheless, to hold, manage.and,conduct the same and accumulate the rents, issues, profits and income thereof for the-uses and 'purposes hereinafter mentioned, Until either the re-marriage" or death of my said wife, but not in any wise to dispose of the same, nor of any part thereof, until the happening of either of said events, except as hereinafter provided.” By.clause “Second” of the will he directed the executrix and executors-to pay and discharge all taxes, assessments, interest, insurance, incumbrances, claims- and demands upon or against his estate, and .then to divide the net rents, issues, income and profit “at the close of each and every-year until either the remarriage or the death of my said wife, equally among my said wife and my children, share • and share alike.” In clause “ Third ” Of the will he directs the division of his estate equally among his children named in the will-,- share and share alike, “ upon either the remarriage or death” of his wife, and he directed that in case any.child should die without leaving lawful issue before the period for division, the share intended for such deceased child should go to the others, and in the event of such death of a child .leaving lawful issue, it was provided that the share of the deceased parent should go to the surviving children.". By the “Fourth” clause he bequeathed certain insurance policies to his wife, and provided that the devises and bequests to her should be in lieu of dower. In the ‘ Fifth ” clause he expressed the wish and desire that his furniture business be continued by his sons. .- By ..the “ Sixth ” clause' he nominated and appointed his wife and his son George, and his friends Charles Derleth and Jacob Gregorius, his executrix and executors and trustees under his will and guardians of his minor children until they should arrive' at the age of -twenty-one years, and further therein provided as follows: “ I give and grant unto my said Executrix and Executors all necessary and proper powers ito pay and discharge all incumbrances, claims and demands whatever upon or against my said estate, raise money thereon, make, execute and deliver leases, bonds and mortgages, powers of attorney, deeds and conveyances in -the law, effectual to carry out the uses, provisions, intents and purposes Of this my Last Will and Testament as fully as I myself could, and as in their best judgment they may deem in and for the best interests and benefits, of my said Estate, and to sell ■ at either public or private sale.”

We are of opinion that the testator, by his will gave a power of sale to the executrix and executors, which it is competent for1 them to exercise in the circumstances disclosed by the record. It is, we think, unnecessary to decide whether the- prohibition against dispon sitión of property contained in clause “ First ” of the will was intended to prohibit a sale of the. property or only a distribution thereof between the parties in interest or of the income thereof, for assuming, without deciding, that it relates to a sale:. by the executrix and' executors, still I think that a sale, for the purpose now intended would come within the exception expressly made by the clause “ except as hereinafter provided.” It may be that the general provisions of clause “ Sixth ” conferring a power of sale upon the executrix and executors would be deemed modified and restricted by the prohibition contained in clause “First” of the will, but by clause “ Second ” of the will the testator expressly directed the payment of all taxes, assessments, interest, insurance^ incumbrances and “ claims and demands whatever upon or against. ” Ins estate. This authority is broad enough to embrace the expenditure rendered necessary by the order of the tenement house department. It, therefore, falls within the exception contained ill.clause “ First ” of the will, and the prohibition against disposing of the property, if' applicable at all to a sale'by the executrix and exec-, utors, does not prohibit them from disposing of the- property for the purpose of meeting such a charge. The testator clearly intended that flie executrix and executors should have- authority., to sell the property should that become necessary for the purpose of meeting taxes-or other charges against the property. That authority should not receive a narrow construction. It should not be held that the authority does not exist until a legal charge exists against the property. If it appears imminent, as it does here, that a legal charge will be made against the property, that is sufficient, for it is manifestly more in the interest of the beneficiaries of the testator to have the power of sale exercised before work is done upon the property by the local authorities, which will become a legal charge and result in the reduction of the income so that it necessarily will he insufficient to pay taxes and assessments and other regular charges arising thereon. I am of opinion, therefore, that the executrix and executors were authorized by the will to sell the premises in question. The appeals are stated to be from only part, of the judgment, but the parts appealed from leave nothing of substance, and a new trial should be had to the end that a finding be made with respect to the order of the tenement house department, which, although the fact is shown by undisputed testimony, is not found in the decisions.

It follows that the judgment should be reversed and a new trial ordered, but as costs are not demanded, without costs.

Ingraham and Scott, JJ., concurred; Patterson, P. J., and Clarke, J., dissented.