Majority
p. 244(69 Hun, 81.) BUCHANAN v. TEBBETTS. (Supreme Court, General Term, Second Department. May 8, 1893.) Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Headnote
Testamentary Power of Sale—Validity.Testator bequeathed certain property to Ms three children, the fourth clause authorizing Ms executors, after one year, but not over two years, from the date of Ms death, to sell certain lands of the estate, and, after deducting taxes, etc., and a sum of money owed Mm by M., to pay M. the balance. Held a valid power of sale, since the three cMldren had title to the land subject to the power, and since there was for that reason at "no time a suspension of the power of alienation.
Case submitted on agreed statement.
Submission of a controversy without action by William Buchanan against Noah Tebbetts to obtain a judgment compelling defendant to specifically perform a contract under which he agreed to purchase land of plaintiff. Judgment for plaintiff.
J. W. Peckett, Jr., (George R. Dutton, of counsel,) for plaintiff.
Noah Tebbetts, in pro. per.
By the will of Augustus Ivins, who died in October, 1885, he bequeathed all the rest and residue of his property to his three children. By the fourth clause of this will the executors were, at any time in their discretion, “after the lapse of one year, but not over two years, from the date of my death,” authorized to sell a parcel of land conveyed by Karbflish & Conselym to the. testator. By this clause the executors were directed to deduct all
p. 245
taxes and assessments then due, and the entire sum of money owing to testator by William T. Mills, and to pay the balance to William T. Mills. By the will "the property would descend to the three children of testator if this limited power is void. If the power is good, it would descend to them subject to the execution of the power. The power of sale was executed after one year and within the two years after testator’s death. The power of sale is good. There was never for a moment a- suspension of the power of alienation. The three children had the title subject to the power. The testator provided that the land should be sold for Mills’ benefit and for the benefit of the estate.- There were always persons in being who could give a. good title. A power of sale after a definite term does not necessarily create an illegal restraint upon alienation. Garvey v. McDevitt, 72 N. Y. 556 . The title which depends on the validity of this power is good, and the defendant should take the title offered.' All concur.
Cases cited
- Garvey v. McDevitt 72 N. Y. 556 p. 245