Scholle v. Scholle

• Decision Date: 16 April 1889
• Citation: 113 N.Y. 261,21 N.E. 84
• Parties: SCHOLLE v. SCHOLLE et al.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 261

21 N.E. 84

SCHOLLE

v.SCHOLLE et al.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from superior court of New York city, general term.

Action by William Scholle against Jacob Scholle and others for partition. Plaintiff appeals from an order of the general term of the superior court of New York city affirming an order of the special term releasing the purchaser at the partition because of defective title.

Alexander B. Johnson, for appellant.

Thomas Hooker, for respondent.

FINCH, J.

Very convincing proof is furnished in this case that Raynor, at his death, owned an undivided three-tenths of the land in controversy, notwithstanding his deed to Philips, which, on its face, purported to convey his entire interest. That deed is liable to be reformed as against all the parties before us, and in judging the title proffered to the purchaser we must assume in the interest of his safety that such reformation may occur, and proceed to the inquiry whether that undivided three-tenths passed under his will to the grandchildren in remainder, or was taken from them, and their interest extinguished by the sale on foreclosure, or the deed given by the executrix. The grandchildren were not made parties to the foreclosure of the mortgage given to Scholle; but the executrix, who alone qualified and entered upon the execution of the will, was made a party defendant. It is now claimed, in behalf of the title tendered, that by the terms of Raynor's will there was an equitable conversion of the real estate into personal, and that the grandchildren took no interest in the land, but only legacies in money coming to them through the executrix, and so her presence as a party was alone needed to make the judgment of foreclosure pass a clear title to the land when executed by a sale. There is in the will no imperative direction for the sale of the real estate. Indeed, there is no direction to sell at all. A power or authority to sell is given, but, unless the exercise of that power is rendered necessary and essential by the scope of the will and its declared purposes, the authority is to be deemed discretionary, to be exercised or not as the judgment of the executrix may dictate, and so an equitable conversion will not be decreed. White v. Howard, 46 N. Y. 162. To justify such a conversion there must be a positive direction to convert, which, though not expressed, may be implied, but, in the latter case, only when the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt. Hobson v. Hale, 95 N. Y. 598. Where, however, only a power of sale is given, without explicit and imperative direction for its exercise, and the intention of the testator in the disposition of his estate can be carried out, although no conversion is adjudged, the land will pass as such, and not be changed into personalty. Chamberlain v. Taylor, 105 N. Y. 194, 11 N. E. Rep. 625.

We are therefore required to consider the terms of the will, and the purposes which they indicate. The testator, after a formal direction for the payment of debts and funeral expenses, gives certain specific articles to his wife and to his children, and then, in the fifth clause of his will, gives, devises, and bequeaths to his executors all the rest, residue, and remainder of his estate in trust, with power- First, to receive the rents and profits; second, to sell and convey the property; third, to invest both rents and profits and proceeds of sales; and, fourth, ‘to divide and apply the same, and the income thereof,’ as directed. By the words ‘the same,’ as used in the last clause, the testator obviously means the entire residue given in trust; for the same words were used in a preceding clause, where they could have no other interpretation, and the division referred to as shown by its carefully expressed terms was of the whole estate, and not merely of some portion invested. The testator then directs his executors to apply the income of two-sixths of the residue, and remainder to his wife for life, and upon her death bequeaths and devises such two-sixths to his children then living, and the issue of those deceased. Then follow four clauses identical in construction and language, by which as to each of his four children he gives and bequeaths and directs his executors to apply one-sixth of the residue to such child for life, with remainder over to the issue of such child then living, or the children of such issue if deceased. A final provision respects the death of a child without issue, and carries that over to the survivors and the issue of those deceased. There is thus contemplated beyond the life-estate of the widow an equal division of the whole residue among the children for life, with a remainder over to the grandchildren. The final and ultimate division in no sense or respect requires or compels a conversion of the land into money, and each devise and bequest is of an aliquot part of the residur, and not of the proceeds of such residue when turned into money. A conversion would perhaps be convenient as an aid to the ultimate distribution, but is not rendered necessary or essential to the final division. Nor, as it respects the intermediate income, is any such conversion requisite. The executors are to receive the rents and profits, and are authorized to invest the same, together with any proceeds of sales which in the exercise of their discretion they may have made, but the income of the whole residue is given, and...