92 N.Y. 199, Phillips v. Davies
| Date | 17 April 1883 |
| Citation | 92 N.Y. 199 |
| Docket Number | . |
| Parties | LEWIS J. PHILLIPS et al., Executors, etc., Respondents, v. MARIA DAVIES et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
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Argued Mar. 16, 1883.
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COUNSEL
William Allen Butler for appellants. The due execution of a power requires a substantial compliance with every condition which precedes or accompanies its exercise. After the death of her husband the power of sale given by the testatrix could not by any possibility be exercised. ( Matter of Vanderbilt, 20 Hun, 122; 1 R. S. 737, § § 121, 122; Hill. on Trustees, 478; Allen v. De Witt, 3 N.Y. 276 at 278; Barber v. Cary, 11 Id . 397; Hetzel v. Barber, 69 Id . 1; Richardson v. Sharpe, 29 Barb. 222.)
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The sole devise in trust of the real estate having been for the life of John D. Phillips, and the sole power of sale having been conditioned on its exercise during his life and with his consent, and neither the devise nor the power having ever taken effect, owing to the failure of the executors to qualify during his life, the plaintiffs had no right to commence this action for the construction of the will. ( Dill v. Wisner, 88 N.Y. 153 at 160; Bailey v. Briggs, 56 Id . 407 at 413; Post v. Hover, 33 Id . 593; Bowen v. Smith, 10 Paige, 193; Chipman v. Montgomery, 63 N.Y. 221; Monarque v. Monarque, 80 Id . 320; Onderdonk v. Mott, 34 Barb. 106; Bailey v. Briggs, 56 N.Y. 407, 413; Mead v. Mitchell, 17 Id . 210; Brevoort v. Brevoort, 70 Id . 136.)If this action can be sustained and the question of the intent of the testator as to the powers of the executors is to be inquired into, the title of the heirs at law will not be disturbed unless it is made plainly to appear that the testatrix intended that her real estate, if unsold at her husband's death, should not descend to them, but should vest in the executors surviving her husband for the purposes of the will. (2 Jarman on Wills, 744; 1 Id . 465; Lynes v. Townsend, 33 N.Y. 558; Roe v. Blackett, Cowp. 235; 1 Bro. C. C. 441; Moore v. Heaseman, Willes, 141; Hay v. The Earl of Coventry, 3 T. R. 83; Wheaton v. Andress, 23 Wend. 462; Post v. Hover, 33 N.Y. 593 at 599; Rathbone v. Dyckman, 3 Paige, 9; Redfield on Wills, 425, n. 5, p. 434, § 18; Allen's Ex. v. Allen, 18 How. [ U. S.] 385; Lynes v. Townsend, 33 N.Y. 570; Roberts v. Corning, 23 Hun, 303; Harvey v. Olmstead, 1 N.Y. 493; Vanderzee v. Vanderzee, 30 Barb. 331; affirmed, 36 N.Y. 231; Vanderwerker v. Vanderwerker, 7 Barb. 221; Van Kleck v. The Reformed Dutch Church, 6 Paige, 600-612; Schauber v. Jackson, 2 Wend. 26; Delafield v. Parish, 25 N.Y. 9; Crowningshield v. Crowningshield, 2 Gray, 526) The court below erred in construing the will to intend that the trust estate or the power of sale as to the real estate should extend beyond the life of John D. Phillips, the husband of the testatrix. ( Richardson v. Sharpe, 29 Barb. 222; Dunsdee v. Goldbacker, 8 Abb. [ N. S.] 439.)
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It was error in the court below to assume that the testatrix, when she made her will, had in view a personal estate of only $16, 000, and that, therefore, she must have intended to give a power of sale to extend beyond the life of her husband. ( Bevan v. Cooper, 72 N.Y. 317; Reynolds v. Reynolds, 16 Id . 257; Lupton v. Lupton, 2 Johns. Ch. 623; Harris v. Fly, 7 Paige, 423; Myers v. Eddy, 47 Barb. 263; Taylor v. Dodd, 58 N.Y. 835; Kalbfleisch v. Kalbfleisch, 67 Id . 354; Hoyt v. Hoyt, 85 Id . 142; Covenhoven v. Schuler, 2 Paige, 129, 130; Trustees of Theological Seminary v. Kellogg, 16 N.Y. 88, 89; 1 Jarman on Wills, 411, 412, 415, 416; Simms v. Dougherty, 5 Ves. 247; Post v. Hover, 33 N.Y. 599; Van Nostrand v. Moore, 52 Id . 12.) The will took effect at the death of the testatrix, and the property must be viewed as it was at her death. The power of sale, being discretionary, did not constitute an equitable conversion of the real estate into personalty. ( Stagg v. Jackson, 1 N.Y. 206; Allen v. De Witt, 3 Id . 276; Lovett's Ex'rs v. Gillender, 35 Id . 617; White v. Howard, 46 Id . 162; Harris v. Clark, 7 Id . 242, 261; Reed v. Underhill, 12 Barb. 113; Hetzel v. Barber, 69 N.Y. 1, 7; Lucas v. Brandreth, 28 Beav. 273.) There can be no presumption of any other intent than that which the words employed in a will express, and the rule which permits a construction in aid of an intent not clearly expressed never allows a disregard of plain provisions which speak positively, and which must have full effect given to them, even though the result may be to make it impracticable to execute the will as to all its provisions. ( Myers v. Eddy, 47 Barb. 263; Van Nostrand v. Moore, 52 N.Y. 12; Schauber v. Jackson, 2 Wend. 13 at 33.)
Everett P. Wheeler for respondents. The court has jurisdiction at the suit of an executor upon whom a power of sale is conferred by a will, to be exercised by him for the benefit of third parties, to entertain a suit for the construction of a will, and to obtain the instruction of the court as to his duty in the premises. The power is such cases is a power of trust.
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(1 Rev. Stat. 734, § 94 [Edmonds' ed., p. 684]; 1 Redfield on Wills, 492; Dill v. Wisner, 88 N.Y. 153; Delancy v. Van Aulen, 84 Id . 16.)The directions to create certain trust funds by investment in personal securities must fail entirely unless a power to sell the real estate exists. When this is the case and the directions are imperative a power of sale will always be implied. ( Kalbfleisch v. Kalbfleisch, 67 N.Y. 354; Hoyt v. Hoyt, 85 Id . 142; Taylor v. Dodd, 58 Id . 335; Shulters v. Johnson, 38 Barb. 80; Livingston v. Murray, 39 How. Pr. 102; Connover v. Hoffman, 1 Bosw. 214; Van Vechten v. Keator, 63 N.Y. 52; Tucker v. Tucker, 5 Id . 408, 413; Meakings v. Cromwell, Id . 136; Hoyt v. Hoyt, 85 Id . 142, 149; Lupton v. Lupton, 2 Johns. Ch. 614.) It is the intention of the testator expressed in the will which is to govern. (1 Redfield on Wills, 432; DuBois v. Ray, 35 N.Y. 162, 175.) If the intention is that the real estate shall be converted into money, it will be considered in equity as so converted, from the time the conversion is directed to take place. ( Fisher v. Banta, 66 N.Y. 468, 477; Kalbfleisch v. Kalbfleisch, 67 Id . 354; Inglis v. Trustees Sailors' Snug Harbor, 3 Pet. 99, 117; Towns v. Wentworth, 11 Moo. P. C. 526, 543; Abbott v. Carpenter, 7 H. of L. Cas. 68; Biddulph v. Lees, 1 Ell. Bl. & Ell. 289.) The intent of the testator as manifested by the whole will should control and the consent of the husband required by the last clause is a limitation which expired upon his death, leaving the executors an unlimited power to sell thereafter. ( Kalbfleisch v. Kalbfleisch, 67 N.Y. 354; Inglis v. Trustees S. S. H., 3 Pet. 99-117; Towns v. Wentworth, 11 Moore's P. C. 526, 543; Abbott v. Carpenter, 7 H. of L. Cas. 68; Biddulph v. Lees, E. B. & E. 289.)
FINCH, J.
The courts which have construed this will were so impressed with the necessity of a trust estate, or power in trust vested in the executors, by force of which the real estate could be sold and converted into money, to effect the carefully framed and deliberately expressed purposes of the testatrix, that they have sustained a trust power as arising by implication,
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and have been ready to put a construction upon the last clause of the will somewhat different from that suggested by the order of its language. That clause is as follows: "I hereby nominate and appoint my beloved husband,...
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