53 N.Y. 528, Fincke v. Fincke

Citation:53 N.Y. 528
Party Name:CHARLES FINCKE et al., Executors, etc., v. ANNA N. FINCKE et al., Appellants, and THOMAS H. RODMAN et al., Respondents.
Case Date:October 10, 1873
Court:New York Court of Appeals

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53 N.Y. 528

CHARLES FINCKE et al., Executors, etc.,


ANNA N. FINCKE et al., Appellants, and THOMAS H. RODMAN et al., Respondents.

New York Court of Appeal

October 10, 1873

Argued Oct. 3, 1873.

Page 529


Joshua M. Van Cott for the appellants.

T. H. Rodman, Jr., for the respondents. When an estate is given in a will with positive directions to sell, with discretion as to time of sale, conversion is worked by the death of the testator. ( Stagg v. Jackson, 1 Comst., 212; Fowler v. Depau,

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26 Barb., 239; Forsyth v. Rathbone, 34 Id., 405; Arnold v. Gilbert, 5 Id., 196; White v. Howard, 46 N.Y. 162.)In a case like this the primary intention of the testator to benefit the legatee must prevail. ( Murray v. Murray, 2 Ch. Sent., 23; Taylor v. Clark, 1 Hare, 168; Meyers v. Eddy, 47 Barb., 266; Setwell v. Bernard, 6 Ves., 535, 536, note; Varley v. Winn, 2 K. & J., 708; Fitzgerald v. Jervoise, 5 Madd., 29; Arnold v. Gilbert, 5 Barb., 197; Dickin v. Edwards, 4 Hare, 276.) Thecestuis que trust were entitled to interest on the $30,000 from the date of the testator's death. ( Haxtan v. Corse, 2 Barb. Ch., 519; Campbell v. Cowdrey, 31 How., 180; In re Bird's Estate, 2 Pars. Eq., 172; Hilyard's Estate, 5 Watts & S., 30; Eyre v. Golding, 5 Binn., 472; Spurway v. Glyn, 9 Ves., 483; Shirt v. Westby, 16 Id., 395; Cook v. Meeker, 36 N.Y. 15; 1 Am. Lead. Cas., 5th ed., 629; 2 Redf. on Wills, 475, ed. 1870; 1 Chicago Leg. News, 210; Fontaine v. Tyler, 9 Price, 94; Queen's Coll. v. Sutton, 12 Sim., 521; Townsend v. Martin, 7 Hare, 471; Page v. Leapingwell, 18 Ves., 463; Creed v. Creed, 11 Cl. & Finn., 510; Story's Eq. Jur., § 566.) It was the duty of the trustees under the will to sell the Red Hook property immediately upon the death of the testator. ( Walker v. Shore, 19 Ves., 391; Hutcheson v. Mannington, 1 Id., 366, and notes; Arnold v. Gilbert, 5 Barb., 196; Forsyth v. Rathbone, 34 Id., 390; Marsh v. Wheeler, 2 Edw. Ch., 163; Robinson v. Robinson, 19 Beav., 390; Howe v. Ld. Dartmouth, 7 Ves., 137; Fearns v. Young, 9 Id., 552; Cafe v. Bent, 5 Hare, 34; 2 Wms. on Exrs., 1196, 1197; Denies v. Scott, 4 Russ., 195; Abrahal v. Hamilton, 101 C. R., 51; Wightwick v. Lord, 6 H. L., 228; Sitwell v. Bernard, 6 Ves., 541.)


The appeal is from that part of the judgment only which determines that it is the duty of the plaintiffs to pay, to the beneficiaries named in the sixth and seventh clauses of the codicil, a sum, semi-annually, equal to the interest of $30,000, from the income of the residuary estate, from September 6, 1868 (the time of the death of the testator),

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until the real estate therein specified shall be sold under the directions therein given.

The residuary estate, which is large, is by the will divided into eight equal parts, one of which is given to trustees in trust to pay the...

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