Strube v. Leutzbach — 66 N.Y. St. Rep. 856

Majority

p. 856

Louis Strube, as Executor, etc., Pl’ff, v. Delia Leutzbach, Def’t.

(Brooklyn City Court, General Term,

Filed April 22, 1895.)

Headnote

Will—Power to sell.

Where testator, after giving a pecuniary legacy which absorbed all the personal property, directs the balance of the estate to be equally divided among his children and gives the executor full power to sell said estate to his best knowledge, a general power in trust to sell the real estate is given to the executor.

Controversy submitted without action on an agreed statement of facts.

W. W. Butcher, for pl’ff; John H. Wolters (Stephen B. Jacobs, of counsel), for def’t.

This is a submission under section 1279 of the Code of Civil Procedure. The will of Philip Leutzbach gives-$800 to his daughter Therese, directs the balance to be divided equally between his three minor children, Therese, William, and Frederick, and appoints the plaintiff, Strube, his executor, giving him full power to sell said estate to his best knowledge. He left $800 in personal estate, and the balance in real estate. Does this will give the executor good power to sell real estate? is the question we are called upon to answer. We think it is manifest that a general power in trust is confided to the executor to sell the real estate, with a clearly implied duty imposed upon him of dividing the proceeds therefrom equally between these three minor children. Kinnier v. Rogers, 42 N. Y. 531 . If the defendant is correct in his contention that this power clause creates a beneficiary power in favor of plaintiff, Strube, vesting an absolute estate in him as the donee of the power, we are satisfied Strube, after conveying as executor, would be estopped from thereafter setting up any claim to the same in his own right.

Plaintiff is entitled to judgment, with costs.

All concur.

Cases cited

Kinnier v. Rogers 42 N. Y. 531 N.Y. 1870-06-23 p. 856