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McDonald v. O'Hara

30 N.Y.S. 545 Court N.Y. Super. Ct. Decision date 1894-10-09 English

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p. 545
(9 Misc. Rep. 686.)
McDonald v. O’HARA et al.
(Superior Court of New York City, General Term.
October 9, 1894.)

Headnote

Executobs and Administeatobs—Sale undeb Powee in Will—Injunction.
Where a will directs the executors to sell and distribute the proceeds, and some of the beneficiaries are infants, the objection of the adult beneficiaries to a proposed sale by the executors, on the ground that it was not a favorable time, though entitled to weight with the executors, is not a ground for enjoining the sale.
Appeal from special term.
Action by Ann McDonald against Bryan O’Hara and others to enjoin a sale of real estate by defendants. From an order denying a motion to continue an injunction theretofore granted, plaintiff, appeals. Affirmed.
p. 546
The opinion of McADAM, J., filed below, is as follows:
The fourth clause of the will directs the executors to sell. The power la mandatory. Delafield v. Barlow, 107 N. Y. 535 , 14 N. E. 498 . While it is. true that when the same person is exclusively entitled to a fund, whether in its unconverted or converted shape, such person being of full age and competent to act, he has the right to take it in its unconverted form (see Story, Eq. Jur. 793; and cases cited in Hetzel v. Barber, 69 N. Y., at page 5; Prentice v. Janssen, 79 N. Y. 478 ; Greenland v. Waddell, 116 N. Y. 234 , 22 N. E. 367 ; Mellen v. Mellen, 139 N. Y. 210 , 34 N. E. 925 ), the rule cannot be applied here, because one of the beneficiaries is under age, and incapable of making a legal election. Such an election, without the concurrence of all the beneficiaries, cannot extinguish the power of sale, for the divided will of part only does not reconvert the money into land, so as to take it out of the operation of the specific purposes of the will, as declared by the testator, and make it vest as land. Indeed, the action is not on the theory that the money has been reconverted into land, but that the present is not the best time to dispose of the property. The time of sale, rather than the right of sale, is called in question. The power of sale fails only when, by reason of a legal and irrevocable election, it becomes extinguished. As the necessary concurrent act of election is wanting, the surviving executor cannot be enjoined from carrying out literally the provisions of the will, which are his dominating guide. The protests filed by the adults against a sale at the present time ought to have great weight with the executors, but they do not give rise to the equitable relief claimed. It follows that the motion to continue the injunction must be denied, with $10 costs to abide the event.
Argued before FREEDMAN and GILDERSLEEVE, JJ.
James Kearney, for appellant.
William J. Lacey, for respondents.

The order appealed from is affirmed, with costs, upon the opinion filed by the learned judge below.

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