Stewart v. Hamilton

Bbadlet, J.:

The will does not in express terms affirmatively direct or empower the executor to sell his real estate. But, in view of the purposes of the devise to the executors and the provisions of the will, the power to sell is clearly implied and as effectually as if directly expressed. (Morton v. Morton, 8 Barb., 18, 20; Livingston v. Murray, 39 How., 102; Mower v. Orr, 7 Hare, 473; Mandlebaum v. McDonell, 29 Mich., 78; S. C., 18 Am. R., 61.)

The devise to the executors was in trust to sell for the benefit of legatees, and vested title for the purposes of the execution of the trust, which the plaintiff took as sole executor. (1 R. S., 728, § 55, sub. 2 ; Id., 729, § 60.) It is contended by the learned counsel for the defendant, that treating the devise as a purpose on the part of the testator to create a trust it is void, because by the terms of the will the absolute power of alienation is suspended in violation of the statute. (1R. S., 723, § 15.) And this proposition^ founded on the provision of the will by which the testator says: “ I enjoin my executors not to sell any of the real estate under three years, unless sold to advantage ; sold on time to advantage.” If this provision has the effect to deny to the executor the right to exercise any power of sale during the period of three years, it comes within the inhibition of the statute, and renders the devise void as a trust. But it does not seem to import any such purpose or intent of the testator, or to be entitled to such construction. B j its terms it does not. prohibit the exercise of power of sale during that or any term. The language may be construed as a qualification of the power, in so far as to require that a sale made within that time be to advantage,, which always attends the power given to sell property held in trust. The matter of advantageous sale is wholly in the judgment of the executor. Iiis action in that respect is not necessarily dependent upon judicial advice or direction of the court. There may have-been a purpose in this provision not inconsistent with the unrestrained and immediate exercise by the executor of the power of sale, and in which may be found the intention of the testator in giving that provision to the will.

While he did not intend to deny to the executors the power to sell within three years, it may fairly be assumed that he did intend to enable them, during that time, to exercise their discretion unembarrassed by any pressure on the part of the beneficiaries to produce a sale and conversion of the real property into money. And this is further evinced by the permission given to sell on time, if sales to advantage required it. The unqualified power to sell, unless expressly dependent on the will of the grantee, is imperative, and the trustee may be compelled by the beneficiaries through the courts to execute it. (1. B.. S., 734, § 96; Hotchkiss v. Elting, 36 Barb., 46; Arnold v. Gilbert, 5 id., 198; Selden v. Vermilyea, 1 id., 58; Moncreif v. Boss, 50 N. Y., 431-436; Van Boskerdc v. Herrick, 65 Barb., 250.) The intent of the decedent evidently was that the execution of the power of sale should depend upon the will or discretion of the executors during the three years, and that they be governed by their judgment in respect to the advisability of doing it, having in view the benefit to the estate by advantageous sales.

This construction is justified by the provisions of the will and effectuates the apparent intention represented by them of the testator. And although the estate is vested in the executor only for the purpose of that which may be denominated an express trust (1 R. S., 729, § 62; Id., 730, § 67), the power of sale is as broad as the requirement of proceeds of the property for the execution of the will.

These views, if correct, dispose of all the questions necessarily presented by the ease submitted for the purposes of the relief required. It is deemed unnecessary to consider any other questions raised or to make any advisory suggestions in respect to matters not legitimately here for determination. It follows that the executor had power of sale and to make the contract in question with the defendant. And that the plaintiff is entitled to judgment requiring the defendant to perform the contract on her part, with costs.

SMITH, P. J., BARKER and Haight, JJ., concurred.

Judgment ordered requiring the defendant to perform the contract on her part, with costs.