Bijur v. Bijur — 16 N.Y. St. Rep. 930

Majority

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Isaac Bijur et al., as Executors, etc., App’lts, v. Paulina Bijur, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

Wills—Construction of—Equitable Conversion—When to be implied.

By his last will and testament the testator directed his executrix and executor to divide the residuary estate into three equal parts. One part he devised to them in trust to invest, and keep the same invested, until his son, Nathan, should attain his majority. A similar devise was made to-his other son, Joseph. By a codicil,' the testator directed that, in making such division, the undivided one-half of the store, No. 127 Maiden lane, be included in the share devised in trust for his son, Nathan, and likewise as. to Joseph. Held, that express words are not essential to work an equitable conversion ; that it may arise from implication only. That the provision as to the Maiden lane property shows that the testator held in view an actual division of his real estate, and leads to the inference that the provisions of the will as to investments refer only to personal property of the testator.

Appeal from special term judgment construing the will of. Asher Bijur, deceased.

H. M. Friend, for app’lts; Isaac L. Rice, for resp’t.

This is a suit to obtain a judicial construction of the last will and testament of Asher Bijur, deceased, and of the codicil to said will. The testator was the owner of three pieces of real estate, consisting of a house and lot-No. 127 Maiden lane, in the city of New York; a house- and lot No. 41 West Fifty-third street, and a small parcel of land in the town of Guttenberg, New Jersey. These lands were not specifically devised, but formed a part of the residuary estate.

The codicil directed the executrix and executors to divide the residuary estate, real and personal, into three equal parts. One of these parts was devised and bequeathed to-the testator’s wife; another to the executrix and executors in trust ‘ ‘ to invest and keep the same invested in bonds and mortgages on productive real estate, or in United States Government or state bonds or 'securities,” until the testator’s son Nathan Bijur should attain his majority, and then to pay over to him the whole of his portion with all accumulations. The third equal part was devised and be

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queathed upon alike trust for the benefit of the testator’s son, Joseph Bijur.

The codicil also contained the following provision:

“ I further order and direct that in making such division of my estate, the undivided one-half of the store No. 127 Maiden lane, in the city of New York, be included in the share or portion given or devised to my executrix and executors in trust for my son Nathan, at a valuation of $20,000, for such one-half; and the other one-half shall be included in the share or portion given or devised to my executrix and executors in trust for my son Joseph, at the same valuation.”

There was a further direction in the codicil that the testator’s wife should have the privileges or option of taking his dwelling-house, in West Fifty-third street, as a portion of her share of the estate, at a valuation of $40,000.

The only question presented for our consideration upon this appeal is, whether the testamentary provisions for the division of the residuary estate caused an equitable conversion of his lands into personalty from the moment of his death. The will does not confer upon the executors any power of sale in express terms, and if any such power exists, it must be implied from the direction to divide. Express words are not essential to work an equitable conversion. It may arise from implication only. Hobson v. Hale, 95 N. Y., 588 , 597. But in the case cited it is held that in order to uphold a conversion of real estate into personalty, where there is no express direction to convert, the implication should be clear as to leave no question in regard to the testator’s design. An examination of the will and codicil before us not only gives rise to serious doubt as to whether he intended that his real property should be sold, but tends to convince us that he did not contemplate its sale.

Standing by itself, the direction that the share left in trust for the benefit of each son should be invested in bonds and mortgages, or in government securities, would seem to make a sale necessary; but the provisions for including in each son’s share one-half of the Maiden lane property at a valuation of $20,000, shows that the testator had in view an actual division of his real estate, and leads to the inference that the provisions of the will and codicil in regard to investments refer only to personal property of the testator. It cannot be held here, as was held in Power v. Cassidy ( 79 N. Y., 602 ), that a conversion of the real into personal property was essential to an effectual division of the estate; for the language of the testator shows that he thought otherwise, and there is no evidence in the case that an actual partition is impracticable.

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For these reasons, and those given by Mr. Justice Lawrence, in the opinion below, we think the judgment should be affirmed, without costs to either party on this appeal.

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