Stevens v. Weaver — 17 N.Y. St. Rep. 717

Majority

p. 717

Emily B. Stevens, App’lt v. John H. Weaver, one of the Executors of the Last Will and Testament of John H. Horton, deceased, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Will'—Constktjction of — When one of sevebal executobs cannot GIVE VALID DEED.

The testator by his will gave a life estate in all his real and personal property to his widow. If the widow deemed the income insufficient for her support she was empowered to designate any portion of the real or . personal estate for sale, and the executors were directed to sell the same and pay over the proceeds to the widow to be absolutely her own. The widow was one executrix, and the defendant the other. After the end of the life estate the testator divides the property unsold among certain legatees named. Held, that the widow not being empowered to determine the price of the piece of land, designated by her for sale, could not alone give a deed. That the discretion of both executors was needed as to the price and terms of sale.

Appeal from the judgment dismissing the complaint entered in the Westchester county clerk’s office, after the trial of the case at the Westchester county special term.

C. H. & E. C. Roosevelt, for app’lt; William M. Skinner, Jr., for resp’t.

John C. Horton, by his will, gave a life estate in all his real and personal property to his widow. If the widow deemed the income insufficient for her comfortable support she was empowered to designate any portion of the real or personal estate for sale, and the executors were directed to sell the same and pay over the proceeds to the wife, to be absolutely her own. The widow was one executrix and the defendant was the other. After the end of the life estate the testator divides the property unsold among certain legatees named. The widow is not given the power to determine the price of the piece of land designated by her for sale, and therefore she could not alone give a deed. The other executor was bound to see that a fair price was obtained for the property in the interest of the residuary legatees. The case is a clear one, therefore, when one executor could not give a deed. The discretion of both executors was needed as to the price and terms of sale. Wilder v. Ranney, 95 N. Y., 7 .

The judgment should be affirmed with costs.

Pratt, J., concurs; Dykman, J., not.sitting.