In re Gantert — 43 N.Y. St. Rep. 802

Majority

p. 802

In the Matter of the Petition of Paul Gantert to compel Executors of William A. Juch to sell Real Estate.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Decedent’s estates—Sale op beal estate—Poweb op sale.

A will directed the executors to pay all debts and funeral expenses; constituted some trusts, and gave the executors “full power and authority to-sell and convey any and all of my real estate either at private sale or public auction,” and contained nothing which limited the power of sale to any specific object. Held, that the power of sale was sufficient -to authorize a. sale for the payment of debts, and that a proceeding under § 2749 of the Code could not be maintained.

Appeal from decree of surrogate sustaining exceptions to report of referee and dismissing petition.

A. G. Thomas, for petitioner; Thomas Allison, for resp’ts.

The appellant presented a petition to the surrogate asking that an order be made directing the sale of his de

p. 803

-ceased debtor’s real estate to pay his debt. The surrogate referred it to a referee to take proof and report with his opinion. The .-application was made under § 2749 et seq. of the Code of Civil .Procedure, which provides, in substance, that such an order as was asked for may be granted, except where the real estate devised is expressly charged with the payment of debts. The ■■debtor left a will which -was duly admitted to probate, and in -that will he directed his executors to pay all his just debts and funeral expenses, and he gave his executors a power of sale of his ■realty in the following words: “ Giving and granting to my ex•ecutors and trustees full power and authority to sell and convey •any and all of my real estate either at private sale or public auction, etc.” He created by his will certain trusts which .we will assume for the purposes of this matter to be invalid (but do not so determine). The referee was of the opinion that the application should be granted, but the surrogate, determined that the •power of sale was sufficient to authorize the executors to sell the • realty for the payment of debts, and therefore it was not necessary to resort to the proceeding instituted in his court by the -creditor.

It is not controverted that if this ruling of the surrogate is correct the land cannot be sold in the manner or by the proceeding instituted by' the creditor, and the single question therefore is as ’ to the true interpretation of the power of sale. Is it to be exercised solely in connection with the trusts created by the will or is it broad enough to confer a power to convert the realty into personalty for the payment of debts? If it is to be exercised -only for specific purposes, the reasonable and necessary interpretation would be to restrict its exercise for those purposes, but if ■it is for all the purposes of the will, that is, to pay debts and funeral expenses as well as for other purposes, there can be no limitation imposed upon it This requires an examination and -analysis of the whole-will and making it we can find nothing which limits the power of sale to any specific object It was conferred in order that the donees of the power might cony out the purposes of the will, one of which was the payment of debts. The payment of such debts under the scheme of the will was just as much one of the objects of the testator comprised within the power of sale-as any other. It is a general power of sale to complete and carry out the intention of the testator and it is unnecessary to inquire whether an equitable conversion was operated dpso facto by conferring the power. The real question in the case is as to the extent of the power of sale and the purposes for which it may be lawfully exercised, and we agree with the learned ■surrogate that “ the power of sale is unlimited and unrestricted to .any particular purpose and is broad enough to include a power for the payment of debts,” and that there being a valid power of .sale for that purpose the proceeding cannot be maintained.

The decree of the surrogate, is affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.