In re the Application for the Sale of Real Property Devised by Callahan

Headnote

Matter of Callahan, 176 App. Div. 906 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered

January 12, 1917, which affirmed an order of Special Term denying a motion to compel the respondent herein to complete his purchase of real property of Cornelius Callahan, deceased. After making various bequests the decedent gave his residuary estate to his daughter, Edith M. Callahan-Smith, “for and during the term of her natural life and after her death to her issue her surviving and to them and their hems forever.” In the event of his daughter dying without issue he gave the residuary estate to his executors, to be divided in the manner provided in his will. The life tenant and the executors filed them consent to the sale. The purchaser declined to complete the purchase of said property and demanded the return of his deposit on the grounds that the executors named in the will of Cornelius Callahan, deceased, and who duly qualified as such, had no legal right under the will of said deceased to give their consent to a present sale of the real property of said deceased, and that the said proceeding is fatally defective for the reason that the said executors were given no power to sell under the said will during the life of the life tenant, and that, as their power to sell will only come into existence upon the death of the life tenant, who is now alive, their present consent cannot bind the ultimate beneficiaries and remaindermen, and that it is not possible at this time to obtain consent to a sale by such beneficiaries.