Citation Numbers: 31 N.Y.S. 588, 90 N.Y. Sup. Ct. 259, 64 N.Y. St. Rep. 142
Judges: Cullen
Filed Date: 12/10/1894
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from a decree of the surrogate of Westchester county determining the accounts of the appellants as executors. The substantial controversy is whether, under the will ■of the appellants’ testator, the power of sale given the executors may be exercised for the payment of debts. The will is as follows:
“In the name of God, amen. I, Ann Bolton, of town and county of Westchester and state of New York, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish, and declare this to be my last will and testament: That is to say: First. After all my lawful debts are paid and discharged, I give and bequeath to my daughter Catherine E. Bolton all my household furniture, beds and bedding, and my silver and plated ware, and all my ■clothing. Secondly. I give, devise, and bequeath to my son Henry B. Bolton the house and lot where he now resides, in the town of Westchester. Thirdly. I authorize and direct my executors to invest the sum of fifteen hundred dollars on good security, and to pay the interest and income to the trustees of the Methodist Episcopal Church at Bronxdale, in the town and county7 of Westchester, for the support of said church; and I also authorize and direct my executors, in case I should not do so before my death, to expend a reasonable sum in erecting a monument and putting in order the family cemetery at Woodlawn; and I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever, in their judgment, they may deem for the best interest of my estate, and to give good and sufficient deed or deeds or ■conveyancy of the same. Fourthly. I give, devise, and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children Henry B. Bolton, Thomas Bolton, John W. Bolton, Mary A Littlewood, Sarah L. Myers, Emily B. Norris, and Catherine E. Bolton, and my adopted son, William H. Birchall, to be divided equally between them, share and share alike. Likewise, I make and constitute and appoint my sons Henry B. Bolton and Thomas Bolton to be executors of this my last will and testament, hereby overlooking all former wills by me made. In witness whereof I have hereunto subscribed my name and affixed seal the sixth day of April, in the year of our Lord one thousand eight hundred and eighty.
“Witness present: Ann Bolton.
“Henry H. Bolton.
“Sarah I. Bolton.”
The preliminary point made by the appellants, that the contestants having once insisted that the executors could not bring the fund realized by the sale of the realty into the surrogate’s court, and there account for it, and in consequence thereof, the item having been withdrawn from the account, were estopped from afterwards compel
“If the testator had specifically devised designated portions of his realty, or impressed them with separate trusts, the presumption is very strong, and usually controlling, that he did not intend that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because, in order to sustain the structure of the will, there must be implied a direction not to sell for such a purpose.”
But the devise of a single piece out of her large realty does not necessarily fall within the rule stated by the learned judge. If the effect of the power would naturally be to break up the general scheme of disposition of the realty, the case would fall within the principle of In re McComb, 117 N. Y. 378, 22 N. E. 1070, and the power of sale be held limited to a sale for the benefit of the devisees. Here there was a large residuary estate, ample to discharge any debt or legacy, without recourse to the «specific devise. The devise of the residuary estate is immediate, and there would seem no reason why a power of sale should be given to be exercised for the benefit of those dev