p. 917(Supreme Court, General Term, Second Department.Headnote
Wills—Construction—Power of Sale.A testator bequeathed one-half the income of his real and personal estate to his widow for life, if she remained unmarried. The remainder of the income he gave to his children, to be expended under the directions of his executor, provided that, if any child should die before the youngest child became of age, leaving issue, such issue should take the parent’s share. At the death of the wife, and on the arrival of the youngest child at the age of 31, the entire estate was given to the children equally! A full power of sale was given to the executor. Held, that the children took the fee of the land subject to the power of sale, and a deed by the widow individually, and as administratrix with the will annexed, would convey a good title.
Case submitted on an agreed statement.
This was a controversy between James H. Hickey and Doris Peterson.
Argued before Barnard, P. J., and Dykman, J.J. B. Sabine, for plaintiff. Doris Peterson, pro se.
The case agreed upon shows • that one Chistopher Peterson died seised and in possession of certain lands and premises which included the particular portion in question. The deceased left a last will. He left a
p. 918widow and minor children. By the terms of the will, one-half of the income of the real and personal estate was given to his widow, Doris Peterson, for life, if she remained unmarried. The provision for the widow was reduced to one-third of the remainder. The remainder of the income was given to the children of the testator, of which there were four living at his death. This income was to be expended under the direction of his executor; and it was provided that, if any child should die before the youngest child became of age, leaving issue, such issue should take the parent’s share. The youngest child died before maturity. The executor named in the will refused to qualify, and letters of administration with the will annexed were granted to the widow. The will gave a very full power of sale to the executor named in it. At the death of the wife, and upon the arrival of the youngest child at the age of 21, the entire estate is given to the children equally.
The administratrix with the will annexed has made a contract as an individual and as administratrix to sell a portion of the land, and the purchaser (plaintiff) objects to the title. The powers of the administratrix are the same as those given to the executor named in the will. Bain v. Matteson, 54 N. Y. 663 . The widow has no interest except dower interest, if she is not barred by the gift of one-half of the income of both real and personal estate. This right, whatever it be, would be cut off by her deed as an individual. The fee of the land went direct to the children subject to the power of sale. The clause or portion of the will which restricts the application of the income until the youngest child became of age was not an illegal suspension of the power of alienation. The accumulation of income beyond the need of the children would be illegal, but would go, under the Revised Statutes, to the next eventual estate. The children can therefore sell, by infant proceedings, their interest in the land. The executor is not bound to wait until the death of the widow before making a sale, if a sale be beneficial, in her judgment, to the estate. The plaintiff should therefore take the title offered.