Furst v. Bohl

($150) yearly, payable every 1st of July in advance, said lease to date from July 1, 1906.

“Third. I hereby authorize and empower my said executor as soon as the ten-year lease expires to sell, convey and dispose of all my real and personal estate and property and convert the same into cash, and apply the proceeds thereof as follows.”

At the time of her death the testatrix owned a piece of real estate, described by metes and bounds in the submission, which the executor, on the 27th of January, 1909, entered into a written contract to convey to the defendant for the consideration of $14,000, $1,000 of which was paid at the execution of the contract, and the balance the defendant agreed to pay when the deed was delivered. At the time fixed for the closing of the transaction the plaintiff tendered to the defendant a deed of the premises in the form required by the contract and demanded the balance of the purchase price. Defendant refused to accept the deed or to make such payment, on the ground that the plaintiff did not have a good and marketable title “for the reason that the executor may not exercise the power of sale given him under the will of said deceased until the year 1916”; in other words, the .defendant objected' to the title because the executor could not exercise the power of sale until after the termination of the lease to the daughter Regina (called' in the will Virginia). But it is agreed that the daughter, at the time-of the death of the testatrix, did not have a lease, though for some time prior thereto she had lived on the premises with her mother.

The admission of the will to probate was contested upon various grounds, among others that it illegally attempted to suspend the power of alienation for a period of ten years; that is, during the term of the lease. On the hearing before the surrogate, it was admitted and stated in open court by the attorney for the daughter that she did not have a lease for ten years, and the surrogate held that, because the-10-year lease spoken of in the will of the deceased had no valid existence, the direction not to sell until its termination was of no effect. The power of alienation was not suspended, and a valid trust was not created. The title to thé property, therefore, vested in the beneficiaries, at the date of the death of the testatrix, subject to the exercise of the power of sale by the executor. Not only this, but it is agreed that, following the death of the testatrix, the daughter leased from the executor, for a period of six months, the premises in question, and that over one year prior to the execution of the contract between plaintiff' and defendant she “released and quitclaimed unto the executor any rights that she might have acquired under said will, and more specifically under the first clause marked ‘Second/ ” which deed was recorded in the office of the register of the county of New York, and that the daughter is not now, and was not at the time the contract was executed, in possession.

Upon the facts submitted, I do not see how there can be a question-but that good title can be passed. The only objection made is predicated upon a lease which never in fact existed. This is clearly establish-' ed by the position which the daughter took in the Surrogate’s Court, as well as by her- subsequent act in leasing from the executor, and any possible doubt which might theretofore have existed as to the execu

It follows, therefore, that the plaintiff is entitled to judgment, without costs, to the effect that the title to the premises is good and marketable, and the plaintiff, as the executor of the testatrix, has the power to sell the same, and that defendant’s refusal to accept the title was unwarranted, for which reason he should be directed to specifically perform by accepting a deed as called for in the contract and paying the balance of the purchase money. All concur.