Royce v. Adams — 32 N.Y. St. Rep. 699

Majority

p. 699

William B. Royce et al., Trustees, Pl’ffs, v. Jennie C. T. Adams, Def't.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.

Headnote

Wells — Power of sale.

Where the language of a will annexes the power of sale to the office of executor, and no personal confidence in the discretion of the person named is either expressed or implied, an administrator with the will annexed takes the power of the original executors, and may execute the power. The same rule applies to the administrators in their character of substituted trustees.

Submission of controversy without action.

Defendant agreed by contract to take title to a certain lot which was left by the late Henry B. Low, deceased. The contract was made with plaintiffs as the trustees under the will of said Henry B. Low, deceased, and they duly tendered a deed, but defendant refused to complete the purchase, claiming that there was a doubt as to whether the power in the will could be executed by amf but thee xecutors and trustees named in the will.

The executors named in the will duly qualified, but on petition of the heirs the letters testamentary were revoked and the executors allowed to resign, and plaintiffs were thereafter appointed administrators with the will annexed and trustees in their place.

W. J. Groo, for pl’ffs ; Alton J. Vail, for def’t.

The question for determination in this action is, whether the administrators with the will annexed, who are also the trustees substituted in the place of the executors of the last will and testament of Henry B. Low, deceased, can give a good title to the real property of which he died seized.

The language is this: “ Second. I hereby nominate and appoint my father-in-law, John D. Watkins, and my sons, Bussell T. and John W. Low, executors, and my wife, Mary 0. Low, executrix of this my last will and testament hereby empowering my said executors and executrix, or whoever shall execute this my will, to sell, lease, or otherwise convey or dispose of any and all my real and personal estate and effects, and to give good title thereto, without lien, charge or incumbrance of any kind upon the same, either for cash or on credit, or both.”

This language annexes the power of sale to the office of executor, and no personal confidence in the discretion of the person named is either expressed or implied. The power of sale is bestowed upon tile executors and executrix, or whosoever shall execute the will.

Under such circumstances an administrator with the will annexed takes the power of the original executors, and the power or trust may be executed by them. Bain v. Matteson, 54 N. Y., 663 . The same rule applies to the administrators in their character of substituted trustees. Farrar v. McCue, 89 N. Y., 140 .

Judgment in favor of the plaintiff should, therefore, be rendered upon the demurrer.

Babnabd, P. J., and Pbatt, J., concur.