Van Winkle v. Fowler , 59 N.Y. Sup. Ct. 355 ( 1889 )

Pratt, J.

The sole question in controversy in this case relates to the con- ■ struction of the following clause in the will of Sarah E. Higgins. Item. “I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June twelfth, A. D. 1876, or all-the right, title, and interest which I, as one of the children of Allen Hubbard, deceased, am-entitled to under and by virtue of the last will and testament of the .said Elmina H. Graves, in trust that my said executor will use the same for the purpose of clothing, educating, and maintaining my said children; and, in case my said executor shall die before the whole of the estate which shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands • at the time of his decease shall be divided equally between them, share and share alike, and, in case any of my said children shall die without issue, the survivor shall take such deceased child’s share.”

We think it clear from all the facts and circumstances submitted that this clause must be held to give a power of sale to the executor. A power of sale may be implied where the circumstances are such that the will cannot be carried out without such an implication. The clause gives the property to the ■executor in trust for a specified object, which cannot be carried out except by a sale of property. It is not very clear' what was in the mind of the testatrix as to whether the property she was to receive under the will of Mrs. Graves was real estate or money, but she used language sufficiently comprehensive to include both. She gives the balance of money, also “all the right, title, and interest which I, as one of the children of Allen Hubbard, am entitled to under and by virtue of the last will of Elmina H. Graves.” The title is thus .clearly vested in the executor in trust. The sole object the testatrix had in view by this clause of the will was that the property, whether personal or real, should be used for the benefit of her children. As she stated in the will, “in trust that my said executor will use the same for the purpose of ■clothing, educating, and maintaining my said children. ” Here is a clear power .conferred upon the executor to use the estate for a specific purpose. The whole object of the trust will fail in this case, unless the executor can convert the real estate into money. The plaintiff must have judgment on the agreed ■statement of facts, with costs.