Conover v. Hoffman

Headnote

A general power to sell real estate given by will to the executors, as such, and not by their names as individuals, is not revoked by the refusal of one of them to act, but survives to, and vests in those who qualify.

Such a power is not revoked by a codicil devising the estate to the executors in trust to make an equal division thereof among the children of the testator and their heirs. When there are no express words of revocation, the provisions in a codicil are never construed as revoking those of the will, unless they are so entirely repugnant that, to give effect to those in the codicil, those in the will must wholly fail.

There is no such repugnancy between a power to sell and a trust or power to divide. A general power to sell given to executors, includes an authority to sell for the payment of debts; and to the execution of such a power, the rights of devisees and heirs have always been held subordinate; and the power previously given can no more be taken away by a direction to divide the estate than by a devise of the estate itself.

When the power exists for any purpose, a iond fide purchaser is protected, no matter for what purpose the power is in fact exercised. A power to sell, and a power to divide, are so far from being incompatible, that the exercise of the former may be necessary to the proper execution of the latter; tk'at is, a sale may be necessary to enable the trustees of the power to make a just and equal division.

Beld, in the principal case, that a purchaser from -the executors acquired a valid title, disentangled from any trust, and freed from any limitations, ¡created by the will.

Judgment at spedial term affirmed with costs.

This action was brought to compel the specific execution of a contract relative to the purchase and conveyance of real estate. The contract is set forth in the complaint, and admitted in the answer, and the defendant, as purchaser, refused to perform it,

on the ground that a good title could not be given by the plaintiffs. The cause was referred to Murray Hoffman, Jun., to take the testimony and report the same, with his opinion thereon. The referee, in January, 1857, made a report, stating all the material facts of the case, and his conclusions of law therefrom. His report and opinion are in these words:—

“ To the Judges of the Superior Court:

“ The subscriber, to whom it was referred by an order of this Court, made on the seventh of May, 1856, to take testimony as to the validity of the plaintiffs’ title to the lands and premises described in the complaint, which are the subject of this action, and to report such testimony with his opinion thereon, reports that he has been attended by the attorneys of the plaintiffs and defendant, and has taken the testimony hereto annexed.

“ The following opinion thereon is submitted.

" This action was commenced on the fourth of April last, to enforce the specific performance of a contract.

“ The complaint states that on the 26th of January, 1856, the plaintiffs entered into a contract therein set forth with the defendant, to sell to her the house and lot known as number 41 West Eighteenth street, in the city of Mew York, and on the first of April ensuing tendered to her a warranty deed, properly executed and acknowledged as required by the contract,, and demanded of her payment of the purchase money in accordance with its terms.

“ The complaint avers that the plaintiffs have good title to the premises, free and clear from all incumbrances, and have complied with every stipulation of the said contract, but that the defendant refuses to comply with or perform the same.

“ The answer acknowledges the contract as stated in the complaint, and that the defendant declined to receive a warranty deed in due form tendered to her, on the ground of defective title, which defect is therein stated as follows:

“ That the title to the premises was in one James R. Smith at the time of his death, but that said Smith left a will and codicil thereto, making such dispositions of his estate that Ms executors had not the power to convey Ms real estate in fee, and make good the title thereto. That they, or some of them, made a deed

to one Robert Dyson, of the premises in question, on or about the 26th of December, 1829, (through whom the plaintiffs claim;) that such conveyance was not a valid conveyance, but was made to avoid the restrictions in the codicil to the said will, and not bond fide or legal in any respect.

“ The question thus presented for examination is, whether the premises in controversy, the title to which is admitted to have been in James R. Smith, from whom the plaintiffs claim, have been duly conveyed to them, so that they have valid title thereto.

“ James R. Smith died in 1817.

“ His will was made on the 23d day of January, 1817, and was" duly admitted to probate by the Surrogate of the City and County of Hew York. It is as follows:

“First.—I desire that my body may be decently interred in the discretion of my executors.

“Second.—I do hereby authorize my executors, hereinafter named and appointed, and the survivor and survivors of them, or such other person or persons who may lawfully obtain the right to execute this my will, in their discretion, to sell in fee simple or otherwise, according to the nature of the estate I may hold at the time of my decease, at public auction, or at private sale, the whole or any part of my said estate, real or personal, and to execute and deliver good and sufficient deeds or conveyances in the law for the same to the purchaser or purchasers thereof, his or their assigns for ever.

“ Third.—Out of the proceeds of my said estate, after deducting all costs, charges, and expenses that my said executors may sustain, or may be put unto, my desire is that my said executors do pay, as soon as conveniently may be, all my just debts, funeral charges and expenses; and the residue of my estate, unless the same, or any part thereof, shall be otherwise disposed of by codicil or codicils to this my last will and testament, I mean shall be distributed according to the laws of the state of Hew York, in the same manner as in case I had happened to die intestate.

“ Lastly.—I do hereby nominate, constitute and appoint Andrew Foster, John Thompson, James Boorman, my wife Hannah Smith, and Matthew St. Clair Clarke, executors of this my last will and testament.

“ Of these executors, Andrew Foster neglected to take upon himself the execution of the will. John Thompson and Hannah Smith, the widow of the testator, being dead, the surviving executors, James Boorman and Matthew St. Clair Clarke, by a deed dated December 26th, 1829, sold and conveyed certain premises belonging to the estate of Smith, among which was the lot in question, to Robert Dyson. This conveyance recites that it was made in pursuance and by virtue of the powers of sale in the will, and purports to be made for a valuable. consideration paid by Robert Dyson. The son and three daughters of the testator, his only heirs-at-law, with the husbands of the daughters, joined in the deed ratifying and confirming the sale, and releasing all manner of right, title, and interest which any of them had in the premises.

“Were these powers of sale properly executed and exercised in the conveyance to Dyson ? A conveyance by executors is not invalidated by the neglect or refusal of any one executor to act. (Laws of 1813, page 366.) Andrew Foster, who thus refused, is to be regarded as if not named in the will; and there is no doubt that powers thus given would continue to the survivors. The authority to sell was to his executors thereinafter named, and the survivor and survivors of them, or such other person or persons who may lawfully obtain the right to execute the will. It was given to them not by name, but in their capacity of executors. The law vests the right in the survivors. (Sugden on Powers, page 146, 4 Hill, 493 .)

The will itself continues it in them.

As to the exercise of the power, the testimony of James Boor-man, one of the executors, (exhibit C) shows that at the time of the sale to Dyson, the estate consisted principally of vacant lots and unimproved lands, there being a claim against it of about $14,000, which there were no means of paying but by a sale. That the parties in interest under the will agreed upon a valuation of the property, and a portion was sold to Dyson at the valuation put upon it, and that such sale was fairly made, and for the full market value at the time.

The will gives the right of disposing of the property at private sale.

From a view of the will alone, and of the action of the execu

tors under it, the conclusion is clear that all the interest of James R. Smith in the lot in question passed, by the conveyance to Robert Dyson.

On the 30th of May, in the same year, the testator executed a codicil to his will, making some modifications of the dispositions of his property, which, it is contended, are repugnant to and revoke the authority to sell.

The codicil sets out with a ratification of the will in the following terms:

“I do hereby ratify and confirm my will in all respects, except so far as any part thereof may or shall be revoked or altered by this present codicil, and in addition to the powers granted in and to my said executors in relation to my said estate, I do now hereby authorize them to lease the same estate or any part thereof, except such as shall otherwise be disposed of in their discretion, and as They shall find the situation of my affairs require.”

The only power given by the will being the authority to sell, we would naturally expect explicit words of revocation to withdraw powers so distinctly given and fully confirmed and enlarged; that such a sudden change of intention would be clearly and unmistakably manifested. Ho such implication will arise from any disposition in a subsequent part of the codicil which can be carried into effect consistently with the exercise of these powers, and can be reconciled with them.

“ In examining the codicil, it is considered in the connection with the will, and the two treated as one instrument, and the intent of the testator is to be gathered from the whole; the codicil being no revocation of the will further than such revocation is particularly expressed.”

Westcott v. Cady, 5 Johns. Chy. R. 343. Hone v. Van Schaick, 3 Barb. Ch. R. 488, Williams’ Exrs., page 8.

The provisions of the codicil, so far as it is necessary to recite the same, are as follows:

To the widow is given a portion of the testator’s real estate for life, with the right to devise the same to his children, and to sell the same with the consent of the executors, except the homestead, and to enjoy the proceeds for her life; the executors are directed to invest and pay her the income of twenty-five

thousand dollars during her life. They are then further directed to convey other portions of his real estate to certain named devisees, and to sell specified parts for the purpose of raising annuities for the objects mentioned. After making bequests, requiring about $7,00(3, the testator proceeds as follows: “All the rest, residue and remainder of my estate, of every kind and nature whatsoever, and wheresoever situate, I give, devise and bequeath unto my said executors, in trust that the same shall be equally divided among my four children, share and share alike, and to their respective heirs. My will further is, that my son James and my daughter Elizabeth shall each have the sum of fifteen hundred dollars set apart by my said executors for their support and maintenance until they arrive at the age of twenty-one ; and if that sum shall not be found sufficient, my executors shall take such further sum from their respective shares of my estate as shall be necessary, and I do hereby give the tuition, care and guardianship of my said son James and my daughter Elizabeth to my said wife. My will further is, that my son James shall not come into the full possession and enjoyment of Ms portion of my estate, until he shall arrive at the age of twenty-five years, nor shall he have the power to pawn, pledge, mortgage or dispose of in any way, the same or any part thereof, before the expiration of that time, but shall be entitled to receive the income arising from his portion between the ages of twenty-one and twenty-five. I further direct, that my daughters Janet, Hannah and Elizabeth, if she should arrive at the age of twenty-one, shall have the privilege of expending and appropriating by and with the consent of the executors, one-third part of their portion of my estate herein devised to them, in such manner as they may think proper, and over which, when so appropriated, they shall have absolute control; and the remaining two-thirds of the portions or shares of my daughters, shall be held separate and distinct, and not liable to the control, debts or engagements of either of their husbands which they now have or may hereafter have, as well those who are married as she who may hereafter marry, giving, however, to the husbands of either or all of them, in case the wife shall die first, either with or without issue, the income of said reserved part of my estate as long as he shall Eve, arising from his wife’s portion, and after Ms death then to

the child or children of my said daughter so dying; and if either of my daughters shall die without lawful issue, or having issue which shall not attain the age of twenty-one years and without issue, then the share or portion of my said daughter, after the death of her husband, or if there be no husband living at her death, shall go and be divided among my other children, share and share alike, and to their issue in case of the death of either of them, share and share alike, such issue to take the portion that would have belonged to his, her, or their father or mother.”

The foregoing are the chief provisions of the codicil. If there has been a revocation of the powers of sale, it must arise from this disposition of the residue and remainder, there being no express revocation and no other clause affording the least ground for inferring such an intent. Is this such a disposition of the estate by the testator that, (as stated by the answer), the executors had not the power to convey his real estate in fee and make good title thereto ?

The natural signification of the language used does not lead to this conclusion.

The will gives the authority to sell the whole or any part of the estate; the codicil ratifies and confirms the will, except so far as the same, or any part thereof, may or shall be revoked or altered thereby, and adds to the authority the right to lease also the estate or any part thereof, except such as shall be otherwise disposed of in their discretion, and as they shall find the situation of his affairs require.

In a subsequent part of the instrument there are specific devises of certain portions of the estate, not including the lot in question, which, so far as those portions are concerned, revokes the authority and gives effect to the exception. To suppose that the testator, after renewing and extending the powers of sale over the estate, had in the same breath rendered them nugatory by otherwise disposing of the whole estate, would be a forced and unreasonable construction, while to confine the meaning of the expression “ otherwise disposed of” to those devises, would be in accordance with the principle of attempting to give effect to all the expressions and provisions of an instrument and of seeking to reconcile apparently conflicting ones.

It is a sound rule that the dispositions of a will are not to be

disturbed by a codicil further than is absolutely necessary to give it effect. (Kane v. Astor, 5 Sandford, 467.) The former interpretation would be substantially a revocation of the whole will thus ratified and confirmed, for the only object left for keeping it alive, would be the nomination of executors.

The supposition most naturally arising from the phraseology of the disposition is, that the testator expected the residue and remainder of his estate to be a mixed fund, consisting of the real estate not disposed of by him specifically, and not sold by the executors, together with the proceeds of real estate sold by them in their discretion, and not needed for the legacies and annuities, and that these he meant to blend together for the purpose of division as the whole estate, except specified portions, had been for the general purposes of payment of debts, legacies and other charges.

Where the words of a will, says the Chancellor in the case of Covenhoven v. Shuler, 2 Paige, 122, are capable of a twofold construction, that should be adopted most consistent with the intention as ascertained by the other provisions of the will.

The exercise of the authority to sell as might be for the interest of the estate, is not only not inconsistent with the directions for the division of the residue into shares, but, from the testimony of Mr. Boorman, it would appear to have been necessary to carry it into effect, nor would the sale interfere with the limitations on those shares. The interests of the immediate, and the contingent rights of the executory devisees could be preserved for them more beneficially in this shape.

Throughout the codicil there are intimations of reliance on the discretion of the executors, and of continued confidence reposed in them. The widow is allowed, with their consent, to convert the real estate devised to her into money: each daughter, with their consent, is to have the one-third part of her share, and they are empowered to take such proportion of the shares of the two younger children as they may think necessary to support and educate them.

They are entrusted with the proceeds of portions of his real estate directed to be sold, and other sums of money, the income of which they are to devote to the purposes mentioned by the

testator, and which, in the contingencies specified by him, are to become part of his residuary estate.

There is no strong inference arising from the greater security of real estate, of an intention that the trust should attach to the land. The testator has shown in other dispositions, his confidence in the judgment «and integrity of the executors. If the devisees should lose by any change made in the estate by them, it would be because the testator has chosen to bestow it in the shape the executors might impress upon it, apparently preferring to incur what he must have considered a slight risk, for the sake of having lodged somewhere powers so advantageous in the management of the estate.

From an examination of the other provision of the codicil, in connection with the situation of the testator’s family, and condition of his estate, additional evidence is derived of an intention to continue this authority in the executors. (Irving v. DeKay, 9 Paige, 521; Wolfe v. Van Nostrand, 2 Comstock, 436.)

The estate was chiefly real, consisting principally of vacant lots and unimproved lands: it was largely in debt, and the testator gives annuities and legacies requiring from thirty to forty thousand dollars. These debts and bequests were a charge upon the real estate (Bench v. Byles, 4 Maddocks, 187) to pay which it would be necessary to make sales, and from the necessity would naturally be inferred the gift of the power.

Without a sale of part of the property, his daughters, who may be presumed to be the direct objects of his bounty, and for whose maintenance and support he would be most anxious to provide, might not receive any benefit from a gift of this nature; for their shares, thus tied up, and in unproductive property, would either not vest in them at all pr only on the happening of a contingency which might not" occur for a long period of time.

The division of such an estate into shares, and the subdivision of those shares, would be greatly facilitated by its conversion into money, or by creating from sales a fond out of which to provide for equality of partition.

The expressions used by the testator in denying to his son till twenty-five years of age, the power to pawn, pledge or mortgage his share, and in giving to the daughters the privilege of

expending and appropriating a third part of theirs, and the directions given as to holding the daughters’ shares so as not to be liable to the control, debts or engagements of their husbands, show that he must have expected his executors would sell part of his estate, it being almost entirely real.

If it were a question of doubtfully conferred powers, the language of the will and codicil, the dispositions made by them, and the condition of the estate, are such as to strongly imply that the powers of sale were intended to be granted. The supposition becomes much stronger where the authority has been distinctly and clearly given; and not only is there no express revocation, or even intimation of a change of the testator’s purpose, but the other provisions are such as to indicate the wish to continue it, and the only disposition from which a revocation can be implied as being repugnant to the authority, can be best carried out without conflicting with it or defeating testator’s intentions.

The position that the devise of the residue and remainder, and the limitations thereon, is repugnant to the powers of sale, and that the former, as expressing the'latest intention, is to prevail, is untenable.

To render a subsequent provision repugnant to a previous one, the last must be entirely incompatible with the first; so that if effect be given to the last, the other must entirely fail. (Sweet v. Chase, 2 Comstock, 73.) Such, as has been seen, is not the case here: even if it were, the general intent distinctly manifested is to be carried out at the expense of the special intent.

4 Kent’s Com. p. 597 and notes; Bradley v. Amidon, 10 Paige, 235; Covenhoven v. Shuler, 2 Paige, 122.

If it be considered as established that the testator meant to subject the whole estate, except the land specifically given to devisees, to the control of the executors, so as to enable them to make sales for the purpose of paying debts and legacies, and of dividing the residue into shares, it would follow that the premises sold by them would be extricated from the trust; and it being undeterminable in whom the interest in the proceeds might eventually rest, to render the sales effectual they must have authority to give full receipts discharging the purchasers.

At the time the sale was made, as stated by Mr. Boorman,

“The assets of the estate were resolved almost or entirely into real estate, subject to a claim thereon by the estate of the widow Hannah of about $14,000. That no means existed of paying off the said claim but by a sale of portions of such real estate, nor of ascertaining the value of the residue in order to apportion it into shares in accordance with the provisions of the will of the testator, but by a sale of the whole of the same. That a portion thereof was sold to Robert Dyson, and the parties in interest became purchasers of the residue according to their respective claims on the estate.” '

The executors were authorized to sell in their discretion, and as they should find the situation of his affairs required. If they, as appears to be the case, considered it requisite to sell for the purposes of division, under the principle of the cases of Haxtun v. Corse, 2 Barbour, 506; Drake v. Pell, 3 Edwards, 251; Arnold v. Gilbert, 5 Barbour S. C. R. 190—“that where conversion is necessary to carry out the testator’s wish and prevent injustice, sales, as far as made, worked a conversion,” the real estate sold by them would be converted into personal estate, and the distributees, when entitled, would take their shares in the proceeds of the sales as if these shares had been left to them as money.

To these proceeds in the hands of the executors the trust for their benefit would attach, and to them alone must the parties in interest look.

The sale to Dyson to discharge the indebtedness to the estate of the widow, the executors clearly had the right to make.

The debts, legacies, and annuities being a charge upon the real estate, would have to be provided for and discharged before the residue and remainder could be determined and divided.

In the case of Bradhurst v. Bradhurst, 1st Paige, p. 331, a testator, after giving his real and personal estate to executors in trust to and for the uses and purposes mentioned in the will, disposed of portions of his real estate, and then directed them to pay certain annuities, and all the rest, residue, and remainder of his real estate he gave to his grandchildren, at twenty-.one, The income of the estate was insufficient to pay all the annul: ties, and it was held that the executors were authorized to sell such part of the estate as would enable them to raise a sufficient sum to purchase the annuities. In that case the whole estate

was given in trust for the purposes of the will, but the testator has in substance done the same thing in the present instance, for a charge is in effect a devise pro tanto to pay the debts and legacies. (2 Story’s Equity Jurisprudence, § 1131 and notes.) The separation of the real estate from the personal in the gift of the residue, in that case, makes it a much stronger authority in favor of the existence of the power in this.

The power to sell for this purpose must include the right to discharge the purchaser from looking after the application of the purchase-money. Each successive purchaser of the lot in ques- ' tion could not be expected to inquire whether more of the real estate had been sold than was requisite to pay the indebtedness, or if the proceeds of that particular lot had been devoted to that purpose. (Story Equity Jur. § 1131.)

The question has been raised as to the validity of the limitations on the shares of the daughters, whether they are not too remote as depending on an indefinite failure of issue. If they were determined to be illegal, the conveyance of the four children of the testator and the husbands of the daughters uniting with the executors would undoubtedly vest the whole estate in the purchaser; but the title, as based upon the right of the executors to sell, appears from a general survey, of the will and codicil to be so fortified and unassailable that it seems unnecessary to seek to strengthen it further, by attacking them. They can stand without conflicting with it.

The conclusion arrived at is, that the codicil has not revoked the powers of sale given by the will; that such powers were properly exercised in the sale of the lot in question to Robert Dyson; and that by their conveyance all the right, title, and interest of James R. Smith, in and to the said premises, were vested in Dyson, who held them disentangled from any trust and unembarrassed by any limitations.

Robert Dyson conveyed this lot with others to Matthew Saint Clair Clarke, one of the executors, and his wife, one of the daughters of the testator, by a clear, absolute conveyance, purporting to be for a good consideration paid by them. The parties to whom they conveyed took from them, not as devisees but as purchasers from Dyson, and cannot be charged with notice of any restriction. Each deed forming a link in the chain of title

is an absolute conveyance and for valuable consideration, containing no suggestion of any cloud or embarrassment thereon; and by a succession of these, it has come into the hands of the plaintiffs.

The answer of the defendant admits the title to have been in James R. Smith at his death. The Register’s searches hereto annexed show that there were no incumbrances on the premises at the commencement of this action.

My opinion therefore is, that the plaintiffs have a valid title thereto.

Ail which, &c.

January 12, 1857,

‘‘M. Hoffman, Jun.”

Upon the coming in of this Report, the action was heard at' Special Term in February, 1857. Mr. J. Duer, before whom it was heard, gave judgment as follows:

“ This cause came on to be heard upon the complaint, answer, order of reference and opinion of the Referee appointed in the action; and after hearing Mr. Edwards Pierrepont, of counsel for the plaintiffs, and Mr. Edward Hoffman, of counsel for the defendant, and due deliberation being had by the Court:

It is ordered and adjudged, that the defendant perform specf fically her contract set forth in the complaint and admitted by the answer. That she receive and accept the deed tendered by the plaintiffs of the premises in question; and that she pay unto the plaintiffs the sum of twelve thousand dollars, with interest from the first day of April, 1856. That she execute and deliver to the plaintiffs her bond, secured by mortgage upon the said premises, payable as in the said contract specified, to wit: one thousand dollars on the first day of April, 1857; one thousand dollars on the first day of April, 1858; and twelve hundred and fifty dollars on the first day of April, 1859; with interest on said several sums until paid, to be computed from the first day of April, 1856, and payable half yearly; said mortgage to be a subsequent lien to a mortgage for ten thousand dollars, to be executed by the said defendant.

And it is farther ordered and adjudged; that the defendant pay the costs of this action, taxed with allowance at $326 18, unto the plaintiffs.”

From this judgment the defendant appealed to the General Term.