In re the Estate of Fitzsimmons

Schulz, S.

This proceeding was brought under the provisions of section 2615 of the Code of Civil Procedure to obtain a determination as to the validity, construction and effect of an attempted disposition of property contained in paragraph numbered “ 3 ” of the last will and testament of the decedent, which is as follows:

“ 3. I hereby direct and empower my executor hereinafter named to sell and convey, at such time as he may deem proper, but not less than two years after my death, and at such price as he may deem adequate, the premises where I now reside, and known as 644 East 229th Street, Borough of the Bronx, City of New York, and to distribute the net proceeds thereof after deducting all expenses of sale, in equal parts, share and share alike, between Mary 'Carney, Catherine Carney, and Louise C'arney, all residing in the said Borough of the Bronx, and Mary Flannigan, Annie McNamara, and Catherine Ford, of the City of New Bochelle, Westchester County, New York, and Mary Connel, residing on Sixtieth Street, in the Borough of Manhattan, City of New York, the said named being my cousins.”

It is contended that the phrase “ but not less than two years after my death ” means that the sale shall not be made before the expiration of two years after the death of decedent, and such contention appears to me to be correct.

The paragraph in question contains a mandatory power of sale, coupled with a direction to distribute the proceeds among the parties named and works an equitable conversion. Salisbury v. Slade, 160 N. Y. 278; Greenland v. Waddell, 116 id. 234, 240; Lent v. Howard, 89 id. 169. If the attempted limitation were given effect, the executor could not exercise the power of sale and hence could not alienate the said real estate for a period of two years after the death of the decedent; in other words, the absolute power of alienation would be suspended for a period of two years which is against the statute providing that such suspension cannot be for a longer period than two lives in being. Real Prop. Law (Cons. Laws, chap. 50), § 42; Matter of Hitchcock, 222 N. Y. 57. The limitation of the power of sale, therefore, cannot be given effect.

The fact that this is so, however, does not necessarily destroy the provisions of the will of which it is a part. The courts lean in favor of the preservation of such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator. Matter of Hitchcock, supra. Where the parts of a avüI are so intermingled that the valid cannot be separated from the invalid, the will must fail, but when it is possible to eliminate the invalid provisions and leave the valid ones intact and to preserve the general plan of the testator, such a construction will be adopted as will prevent partial or total intestacy. Matter of Thaw, 182 App. Div. 368, 372.

The intention of the testatrix was that the property should be sold and that the cousins should share in the proceeds of the sale of the real estate in question and this can be carried out after eliminating the attempted unlawful suspension referred to. The limitation of the power of sale should be treated as directory merely and not as of the essence of the power itself. Mott v. Ackerman, 92 N. Y. 539; Waldron v. Schlang, 47 Hun, 252. The power of sale when freed from the provision which violates the statute, may thus be executed at any time, and upon such sale, distribution may be made as provided in the will. Smith v. Chesebrough, 176 N. Y. 317.

Decreed accordingly.