Woerman v. Baas , 35 N.Y. St. Rep. 276 ( 1890 )

Barnard, P. J.

This is an action for the partition of lands. The defendant Baas is the executor of the will of William Bouthrop, and the plaintiff and other defendants are devisees of the lands in question under his will. The defendant Baas makes this motion to set aside the proceedings for want of power of the plaintiff-to institute the action. The papers show that the devisees, by a written power of attorney, authorized the German Society of the City of New York, “our true and lawful attorney in our place and stead to ask, demand, and receive” “all the estate, legacy, interest, or claim to which we are entitled as heirs at law, next of kin, or legatees of said deceased, giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite to be done in and about the premises as fully to all intents and purposes as we severally might or could do- if personally present with full power of substitution.” The German Society is a benevolent society, recognized by Germany, and incorporated in New York by an act of the legislature. This'company, in addition to other duties as to emigrants, undertakes to collect legacies, estates, and debts for residents of the German empire. The plaintiff’s attorney was employed by this German Society. The provision is sufficient. The society can demand and receive the estate as fully as the heirs could if present, and an attorney may be substituted for the purpose by the express words of the power. While general words do not enlarge the special grant'of power, the whole instrument must be read together if thereby the words of the grant of power are made clear. The entire instrument read together gives a general power to settle up the estate of William Bouthrop, and to demand and receive the shares of the principals in the power. While the power is special, and confined to this estate, it is general and full in respect to it. Such a power is to be liberally construed, and to include the subject of the agency. Craighead v. Peterson, 72 N. Y. 279. The order should be affirmed, with costs and disbursements.