Waldron v. Schlang — 13 N.Y. St. Rep. 401

Majority

p. 401

Dykman Waldron, as Executor, v. Charles Schlang.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

Will—Construction of—Powers—Power to sell—Time within which SALE IS TO BE MADE SIMPLY DIRECTORY.

The testatrix, by one clause in her will, authorized and empowered her executor, at any time within five years after her decease, to sell and dispose of and convert into money all her estate, real and personal, except what she particularly mentioned, and to execute all necessary deeds, etc. Held, that it was the intention of the testatrix to convert all of her property into money, which was to be divided in the manner directed by the will, and when such appears to he the intent, a limit of the time within which the real estate shall he sold is inoperative. The power remains in full force and virtue in consequence of that intent. Held, also that the limitation of time within which the sale was to take place was directory only and that after that period the trustees can sell and make title.

Case submitted without action under section 1219 of the 'Code.

J. K. Van Hess, for pl’ff; J. M. Baldwin, for def’t.

The defendant purchased, at a public sale, real estate No. 356 Bowery in this city. He refuses to complete on the ground that the plaintiff had no power to convey.

It appears that Cornelia Waldron was the owner of the property which, by her will, she disposed of with other property owned by her. By the 6th section of her will she authorized and empowered her executors, at any time within five years after her decease, to sell and dispose of and convert into money all her estate, real and personal, except what she particularly mentioned, and to execute all necessary deeds or other instruments for the proper conveying of the same, and, after paying and deducting all

p. 402

necessary expenses, to divide the same into ten legal portions of shares which she directed her executors to pay to the persons named. Two of the shares she gave and devised to her executors, to be held in trust by them for the purposes mentioned.

It is evident that it was the intention of the testatrix to convert all of her property into money, which was to be divided in the manner directed by the will, and when such appears to be the intent, a limit of the time within which the real estate shall be sold, is inoperative. In other words the power of sale remains in full force and virtue, in consequence of that intent, it being a cardinal rule in the construction of wills that the intention shall prevail, if it can be done without violating any principle of law or public policy.

It will have been observed that the direction to divide the proceeds is imperative, and this implies a power of sale imperative to that end. 2 R. S. (6th ed.), 1115, § 117; 1 R. S., 734, § 96. All parts of wills aré to be contraed in, relation to each other so as, if possible, to form one consistent whole. Jarman Rules of Construction of Wills, No. 7.

In this case, inasmuch as the testatrix authorized the • sale of the estate, and it is apparent that it was the intention that it should be sold, the doctrine of equitable conversion applies and, indeed, would apply if the power of sale was imperative in its terms. Phelps v. Pond, 23 N. Y., 69 ; Bogert v. Hertell, 4 Hill., 495 ; Lent v. Howard, 89 N. Y., 169 .

But aside from this doctrine it has been held that a trust continues, notwithstanding the expiration of the time limited for its execution. Van Vechten v. Van Vechten, 8 Paige, 105; Mott v. Ackerman, 92 N. Y., 539 ; Id., 200.

In Mott v. Ackerman, the testatrix left both real and personal property, which her executors were authorized, empowered and directed to convert into money within three years after the probate of the will. Twelve years after that incident the executors made a contract for the sale of part of the real estate. The purchaser refused to complete and the court of last resort held that as the purposes of the will, required a power of sale it was imperative and that the neglect or misconduct of the executors ought not to defeat the purposes of testatrix or to destroy the rights which depended upon the proper performance of their duties.

The result was that the power of the executors to convey was declared to be intact and the purchaser-compelled, to complete his contract. See, also, Perry on Trusts (§ 771), where it is stated on authorities cited that a trust to sell,.

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with all convenient speed, and within five years is directory -only, and the trustees can sell and make a good title after that period.

These principles applied to this case require that judgment should be directed in favor of the plaintiff and that, the defendant should be required to complete his contract.

Van Brunt, P. J., and Daniels, J., concur.