Sweeny v. Warren — 59 N.Y. Sup. Ct. 246

Majority

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JAMES SWEENY and Others, Plaintiffs, v. PHEBE J. WARREN and Others, Defendants.

Headnote

Powers of sale in a will — when not inconsistent with its other provisions.

Tlie will of John Sweeny contained the following clause: “I also desire and authorize my executors to sell and convey all that part of block F on the Niagara river, * * * and it is my desire that the said land be sold in a body for commercial purposes.”

After making a devise of the remaining part of block F to certain persons, and other gifts, the will, in its concluding clause, was as follows: “ And I authorize and direct my executors to sell and convey the strip of land heretofore mentioned and described as lying on the Niagara river, and also that piece of land lying on Sweeny street, and on the Tonawanda creek, east of the building known as the shoe-shop, for the purpose of discharging all my debts.”

Held, that the direction or authorization made by the testator to the executors to convey the property for commercial purposes was not inconsistent or in any respect irreconcilable with the later provisions of the will.

That the intention of the testator was that the executors might sell these premises, recommending them to look towards commercial uses for a successful market

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tlierefor, and that if. they should not turn out to be available for such purposes, then to sell them for the payment of debts, if necessary.

That a sale made by the executors to the widow of the testator, who knew that the personal estate of the testator was sufficient to pay all its debts, by a deed -which contained no limitations as to the use of the property for commercial purposes, was valid.

Application for judgment upon a verdict directed for the defendants at the Niagara Circuit, September, 1888, subject to the opinion' of the court at General Term.

Sherman S Rogers, for the plaintiffs.

E. Q. Sprague, for the defendants.

This action is ejectment to recover the possession of apart of block F in Tonawanda, Niagara county. The question in it arises under the will of John Sweeny, the material portions of which, so far as they relate to this action, are as follows: “ I also desire and authorize my executors to sell and convey all of that part of block F on the Niagara river, running back from said river to a continuation of the west line (to the north) of a projected canal, as laid down on a map made by Augustus Canfield, on lot or block G, being nearly on a parallel line with the Niagara river, and it is my desire that the said lands shall be .sold in a body for commercial purposes.”

After making a devise of the remaining part of block F to certain persons, and other gifts, the will, in its concluding clause, is as follows: “ And I authorize and direct my executors to sell and convey the strip of land heretofore mentioned and described as lying on the Niagara river, and also that piece of land on Sweeny street, and on the Tonawanda creek, east of the building known as the shoe-shop, for the purpose of discharging all my debts'.”

The defendants claim title to the land in question under a deed executed by Warren Bryant, as surviving executor of the last will and testament-of John Sweeny, while the plaintiff claims title as íiéirsat-Jaw, or the grantees of the heirs-at-law, of John Sweeny.- " There was ñó direction'for the application of the personal property tó the payment of debts, and no other disposition made of it by the will. But such personalty was abundantly sufficient to pay all the indebtedness which the testator owed, and was actually applied to that

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purpose. It is now contended by the counsel for the plaintiffs that the last clause of the will, above mentioned, limited the right to sell this land for the payment of debts only, and should prevail over the previous portions of the will; and that, inasmuch as the widow of the testator was the purchaser from Bryant, the surviving executor, having knowledge of the condition of the estate, she is not, nor are her grantees or heirs-at-law, in position to claim any equities other than those which may attach by the terms of the will themselves.

The question before us is one of testamentary intention. The true construction of this instrument does not, in our judgment, lead to the inference or conclusion that there is disclosed in it an irreconcilable conflict of purpose in the mind of the testator. The direction or authorization made by the testator to the executors to convey the .property for commercial purposes is not inconsistent in any respect or irreconcilable with the later provisions of the will. It is only when the subsequent provisions are not reconcilable, and where repugnancy between the several provisions distinctly appeal’s, that the rule giving effect only to the latter provisions'prevails.

The true rule is stated in the case of Roseboom v. Roseboom ( 81 N. Y., 356 ), where the court says: “We thus follow the rule which requires a will to be so construed as to avoid, if possible, all repugnancy and give effect to all its language. We have no occasion to depart from it; the two clauses are not irreconcilable, and •there is no occasion, therefore, to reject one in order to uphold the other — a desperate remedy and to be resorted to only in case of necessity — so that one rather than both provisions should fail.” (See, also, Clarke. v Leupp, 88 N. Y., 228 ; Van Vechten v. Keator, 63 id., 52; Van Nostrand v. Moore, 52 id., 12.)

Reading the several provisions of the will together, the plain construction of them is that the testator desired to, and did, actually give his executors power to sell the portion of land in question absolutely. The expression in the clause quoted, that it should be conveyed for commercial purposes, is not a limitation upon the power of the executors to convey, nor a limitation upon the use to which the land should subsequently be put. It constitutes no more than a mere expression on the part of the testator that he believed the strip of land to be peculiarly adapted to commercial purposes,

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wbicli was pre-eminently true; and this was undoubtedly a prevailing reason in bis mind wbicb induced him to give tbe power to bis executors to convey it.

Tbe subsequent clause giving tbe executors power to convey for tbe purposes of paying, debts is clearly reconcilable with tbe foregoing views, for tbe moneys received upon tbe sale, if required, would undoubtedly be appropriated to that purpose. There appears to be no limitation expressed in tbe latter clause of tbe will of tbe power and tbe right of tbe executors absolutely to convey these lands in accordance with tbe precedent clauses. In short, tbe intention of tbe testator, as disclosed by bis will, appears to be that tbe executors might sell these premises, recommending them to look towards commercial uses for a successful market therefor; and if they should not turn out to be available for such purposes, then to sell them for tbe payment of debts, if necessary.

Such being tbe case, tbe decision of the- learned judge at tbe circuit was correct, and judgment should be ordered for tbe defendants upon tbe verdict, with costs.

Barker, P. J., and Dwight, J., concurred.

Motion granted; judgment ordered for tbe defendants on tbe verdict.