Sayles v. Best — 49 N.Y. St. Rep. 460

Majority

p. 460

Moses T. Sayles, Appl’t, v. Tristram C. Best et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

1. Will—Bequest of proceeds of sale of real estate—Judgment.

One B., by his will, gave a life estate in certain land to his widow, and the balance to his executors on an attempted trtist, with power to his executors to sell the same and divide the proceeds among his legal heirs. Held, that a judgment recovered against one of the heirs was not a lien on his interest therein, as he took no interest in the real estate as such, but only in the proceeds as personal property ; or, if an interest vested, it was subject to the power of sale and was divested by its execution.

2. Supplementary proceedings—Receiver.

An order appointing a receiver in supplementary proceedings without personal service of notice on the judgment debtor is void.

Appeal from judgment dismissing the complaint on the merits. Action against the defendants, as executors of the will of Peter K. Best, to recover a portion of the money received by them upon the sale of the real estate of the testator by virtue of a power of sale contained in the will.

Plaintiff claims as judgment creditor of Alfred E. Best, one of the lieirs-at-law of Peter K. Best, and also as purchaser at a sheriff’s sale of Alfred’s interest, and also as purchaser of the interest of Alfred E. Best from a receiver appointed in proceedings supplementary to execution.

The following is the will of Peter K. Best:

First. I give and bequeath to my wife, Jane E. Best, my homestead farm, where I now reside, during the term of her natural life, to be accepted and received by her in lieu of all,her dower, and after her decease I hereby give my executors hereinafter named said farm in trust, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet and to the best interest of my estate, and that the proceeds therefrom shall be equally divided, and given to my legal heirs, share and share alike.

Secondly. The farm upon which my son Jacob now resides I hereby order, direct and give power to my executors to rent from time to time, or from year to year, and keep the same in proper repair, and the surplus that may accrue from the said rent may be used as my executors think best, until my youngest child who shall live to arrive at the age of twenty-one years, shall arrive at that age. I then give said farm in trust to my executors with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner as to them shall seem meet, and that the proceeds therefrom shall be equally divided, and given to my legal heirs, share and. share alike. Provided, however, that in case my two youngest children, Lydia M. and William M., shall die before the time of sale above provided for, then such power of sale shall be executed immediately after the death of both of said children last mentioned.

Thirdly. The red house and two lots near the water weir, belonging to me, I order, direct and give my executors the same

p. 461

power to rent, keep in order and dispose of at the same time and in the same manner, and that the proceeds therefrom be divided and given to the same heirs, and in the same manner, as the last above mentioned farm.

Fourthly. I hereby give to my executors in trust, with power to sell to the railroad company, such land as they require for their own use, at such time and upon such terms as to them shall seem proper and right, and the money arising from such sale may be used as my executors think best.

Fifthly. I give and bequeath to my wife, Jane B. Best, all my household furniture and all my personal property, of whatever name or nature, subject to the payment of my just debts.

Lastly. I hereby nominate and appoint my wife, Jane B. Best, my son, Jeremiah L Best, and my brother, Tristram C. Best, to be the executors of this, my last will and testament.

E. F. Bullard, for app’lt; Charles S. Lester, for resp’ts.

Alfred Best, it seems to me, took no title to the real estate. Whatever interest he had in his father’s estate was as a legatee under his father’s will, and by that he was given no interest in the real estate, only in its proceeds. He could not take any interest in it until it was sold, and then he took it as personal property, It is true probably that within the case of Underwood v. Curtis, 127 N.Y., 523 -33, 40 St. Rep. 255 , the real property did not actually become converted into personalty until it was sold; but he could not take his portion until it was sold; a portion of it the widow of the testator had the use of during her life time, the balance the executors were to take charge of and receive the rents and profits therefrom. The whole will shows a plain intention on the part of the testator that no part of his real estate should go to his children as such; it is carefully kept out of their possession or control, and specific directions given for the distribution of the proceeds of the sale thereof among them. If Alfred did not take as heir and had no title to the real estate as such, then a judgment against him would not be a lien thereon.

But, if we assume that the title to the real estate vested in the heirs, still that title was subject to the power of sale, and was divested by its execution. 1 R. S., 735; § 107 ; Birdseye Statutes, 2291, § 35; Blanchard v. Blanchard, 4 Hun, 287 ; Hetzell v. Barber, 6 id., 534 ; Germond v. Jones, 2 Hill, 569 .

. Ho personal service in the supplementary proceedings having been made upon Alfred Best, the judgment debtor, the order appointing a receiver was void. Ashley v. Turner, 22 Hun, 226 ; People ex rel. v. Warner, 51 Hun, 53 ; 20 St. Rep., 573 .

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.