Anderson v. Davison , 5 N.Y. St. Rep. 48 ( 1886 )

Barnard, P. J.:

The intent of the will seems to be plain, that his entire estate, real and personal, is charged with the payment of debts and the legacies named in the will. It is only the “rest, residue of my real and personal estate’” which is given to the son Charles. If this be the true construction of the will, the sale is imperatively ordered. A power to sell, although described in words merely empowering the executor to do so, is imperative when the purposes of a will require a sale. (Mott v. Ackerman, 92 N. Y., 539.) If the power of sale was imperative, a sale could be made even by an administrator with the will annexed. (Cooke v. Platt, 98 N. Y., 35.) A power of sale given by will can be executed when the fee is devised to residuary legatees. The power is not inconsistent with the devise. (Crittenden v. Fairchild, 41 N. Y., 289.) The facts in this case show a necessity of the sale for the purposes of the execution of the provisions of the will. By its terms $10,000 was to be invested to produce an annual income to the widow for life, and $20,000 was given absolutely to the grandchildren. There was never enough of the personal estate to raise these sums after the debts were paid, and the residuary legatee who was then acting executor has in some way lost it. The infant grandchildren should not be held responsible for the mismanagement of the executor. The title is therefore good and the defendant should take the same.

Pratt, J.:

The question in this case is whether plaintiff, as executor, has the power to sell lands of his testator. The will of plaintiff’s testator contains a power of sale, coupled with no trust. Before the creation of the power the testator had devised to his son all of his real estate. There is no discretion in the will as to what disposition shall be made of the proceeds of sale. But there are a number of specific legacies amounting in the aggregate to $30,000. The personal property left by testator amounted to $20,000, and there were debts to the amount of about $3,000.

The residuary clause to the will seems to blend the real and personal property in one fund. There is no specific devise of real estate, but the legacies are made payable out of the whole estate without distinction so far as any language in the will is concerned. It is plain from reading the whole will that the testator intended the' legacies to be charged upon the realty. (Hoyt v. Hoyt, 85 N. Y., 142; Scott v. Stebbins, 91 N. Y., 605.) The clause conferring the power is as follows: First. I hereby empower my executors to sell all my real estate, private or public sale, as to the best advantage.

It will be observed that the language is clear and emphatic, and leaves no room for conjecture. Nothing can be more manifest than the fact that the testator intended to authorize the executors to sell his real estate. The surrounding circumstances all show such an intention. The giving of legacies far beyond the amount of his personal property, and the direction to set apart ten thousand dollars and invest it for the use of his widow, make the will inconsistent with any other theory. Such a power can be upheld by authority. (Crittenden v. Fairchild, 41 N. Y., 289; Scott v. Stebbins, supra; Kinnier v. Rogers, 42 N. Y., 537.)

A judgment should be entered for the plaintiff upon the case submitted, requiring the defendant to accept the plaintiff’s deed, and to pay the consideration, without costs.

Judgment for plaintiff upon submitted ease.