Wild v. Bergen , 23 N.Y. Sup. Ct. 127 ( 1878 )

BakNakd, P. J.:

Joseph Wild and Phebe Cowenhoven became co-obligors upon an undertaking for John Mackay. Wild, the plaintiff, has been called upon to pay the bond and has done so. Phebe Cowen-hoven died before Wild paid the claim, leaving a last will, by the seventh clause of which she directed, authorized and empowered her executor to sell certain land described therein, to pay debts and legacies. The personal estate is exhausted. The executor sold a portion of the lands, and with the proceeds paid all debts but the plaintiff’s claim, and all the legacies. The seventh clause of the will directed the sale of these lauds ‘ ‘ within two years after my decease.” This action was not commenced until after the expiration of two years from the decease of the testatrix. The plaintiff has an equitable claim for contribution against the estate. The executor has no assets, and the question is, whether he can execute the power after the expiration of the two years. I think he can be decreed so to do. The direction to sell the lands described to pay debts, in effect made plaintiff a beneficiary under the power, entitled to demand its execution. The plaintiff’s liability on the bond did not become fixed until after the expiration of the two years. It was not the intent of the seventh clause of the will to limit the execution of the power to two years. It directed the sale within two years, as a safeguard against the executor taking any longer time to pay debts and legacies. If this is not the true construction of the will, but that the testatrix limited the execution of the power to the two years, the limitation would not defeat this action. The direction to sell the lands, and with the proceeds to pay testatrix’s debts, imposed the duty upon the executor, which the plaintiff was entitled to have performed by him. It is substantially a trust for the benefit of plaintiff among other creditors. Can the plaintiff be deprived of his beneficial interest under the power, by the failure to execute it by the trustees? This is antagonistic to a universal equitable principle, that a trust shall not fail because of the neglect of the trustees to execute it within the time limited. No objection having been made to the complaint, I think the judgment should not be modified as to the clause permitting application for further relief to be made at the foot of the judgment, in case the land fails to satisfy the debt. All the residuary legatees are before the court, and all the facts established from which a complete and final determination can be made.

I think the judgment should, therefore, bo affirmed, with costs.

DykmaN, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.