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McDonald v. O'Hara

68 N.Y. St. Rep. 735 Court N.Y. Super. Ct. Decision date 1895-07-01 English

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p. 735
James A. McDonald, by his Guardian, etc., Resp’t, v. Bryon O’Hara, as Surviving Executor, etc., et al., App’lts.
(New York Superior Court, General Term,
Filed July 1, 1895.)

Headnote

Will — Conversion—Power oe sale.
Where the beneficiaries under a will which, by conferring upon the executors a mandatory power of sale, converts the land into personalty, elect to take the land, there is a reconversion into realty, and the power of sale is extinguished.
Appeal from an order, continuing an injunction pendente lite.
William J. Lacey, for app’lt; James Kearney, for resp’t;

— The order should be affirmed, with $10 costs and disbursements, upon the opinion filed by the learned judge at special term.

All concur.

The will, by conferring on the executors a mandatory power of sale, converted the land into money. The parties in interest, having elected to take the land as such, have worked an equitable reconversion. It is again land, and the title is in them in fee. Cases cited in 9 Misc. 686 ; 62 St. Rep. 122 ; affirmed 144 N. Y. 566 ; 64 St. Rep. 236 . The infant, by its testamentary guardian and its guardian ad litem, with the sanction of the court, hereby expressed, has joined with the adults in the election, so as to make it the united as well as the binding act of all. The conversion is complete and the power of sale extinguished. If the executor, as he claims, has incurred expenses in reference to the land prior to the reconversion, and he cannot obtain reimbursement from the estate in his hand, he may plead the facts, that the court may in its :íí;:-1 decree protect, by equitable lien or otherwise, any just deni an-. he may have. Those who seek equity must do equity. In the meantime the injunction prayed for, restraining further interference with the land by the executor, will be granted. Ho costs.

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