Sweeney v. Warren

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 426,28 N.E. 413
• Parties: SWEENEY et al. v. WARREN et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 426

28 N.E. 413

SWEENEY et al.

v.WARREN et al.

Court of Appeals of New York, Second Division.

Oct. 6, 1891.

Appeal by plaintiffs from a judgment of the general term of the supreme court of the fifth judicial department, entered on a verdict directed subject to the opinion of the general term. Reversed.

On October 12, 1854, John Sweeney died, leaving Caroline Sweeney, his widow, and several collateral relatives, who were his heirs at law and next of kin. He left a will, executed October 9, 1854, which was probated December 26, 1854, and letters testamentary were then duly issued thereon to the two executors nominated therein, who immediately entered upon the execution of their trust, and continued therein until 1856, when one of them died, and thereafter the survivor discharged the duties imposed by the will on both executors. In the first division of the will the testator devised two village lots to his wife in fee, and a life-estate in a farm of 60 acres, and the stock thereon, in lieu of dower. In the second division the testator provided: ‘ Second. I hereby direct and authorize my executors hereinafter named to sell and convey to the New York Central Railroad Company a certain strip of land, [described] on condition and in consideration that the said railroad company fulfill the agreement and contract made by them with the heirs of James Sweeney. I also desire and authorize my executors to sell and convey all that part of block F, on the Niagara river, [particularly described;] and it is my desire that the said land shall be sold in a body, for commercial purposes.’ Then follow in this division 13 specific devises, and also a devise of the remainder of the 60-acre farm, subject to the life-estate of the wife. Near the end of the will, and in the second division, is the following provision: ‘I authorize and direct my executors to sell and convey [the land directed to be sold for commercial purposes,] and also that piece of land on Sweeney street, east of the building known as the ‘Shoe-Shop,’ for the purpose of discharging all my debts.' The will contained no residuary clause, and makes no disposition of the testator's personal estate, nor of the avails of the two pieces of real estate directed to be sold, unless used in payment of debts. The testator also died seised of four other parcels of land, worth about $3,500, which were not disposed of by his will. January 27, 1855, the surviving executor sold and conveyed to the testator's widow the land in block F, for $500, at which time the executor and widow knew that, after payment of all debts and expenses of administration, there was a surplus of more than $1,200 arising from the personal estate. On the 10th of March, 1874, this action of ejectment was begun by the testator's heirs at law against Caroline Sweeney to recover possession of the lot purchased by her. Subsequently Mrs. Sweeney died leaving a will, which was admitted to probate, and her executors were substituted as parties defendants in her stead. On the trial of the action a verdict was directed for the defendants, subject to the opinion of the general term, where a judgment was ordered for the defendants upon the verdict, and thereafter a case was made pursuant to section 1339 of the Code of Civil Procedure.

VANN, J., dissenting.

Sherman S. Rogers, for appellants.

E. C. Sprague, for respondents.

FOLLETT, C. J., ( after stating the facts.)

In considering the questions involved in this appeal, it will be convenient to examine separately the two clauses which, it is asserted, gave the executors power to sell the lot sought to be recovered. The clause contained in the latter part of the will provides: ‘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 Sweeney street, and on the Tonawanda creek, east of the building known as the ‘Shoe-Shop,’ for the purpose of discharging all my debts.' By this provision the lots mentioned are not converted into money, out and out, but the executors are empowered to convert them for a specific purpose, to-wit, the payment of the testator's debts. When a testator authorizes his executors to sell and convert into money all or a part of his realty for a specific purpose, which fails, or is accomplished without a conversion, the power is extinguished, and the land cannot be sold by virtue of it, or treated as money, but it descends to the heir, unless it is devised. Wood v. Keyes, 8 Paige, 365; McCarty v. Terry, 7 Lans. 236; Jackson v. Jansen, 6 Johns. 73;Sharpsteen v. Tillou, 3 Cow. 651;Bogert v. Hertell, 4 Hill, 492;Hetzel v. Barber, 69 N. Y. 1;Read v. Williams, 125 N. Y. 560;¹ Hill v. Cock, 1 Ves. & B. 175; Chitty v. Parker, 2 Ves. Jr. 271; Taylor v. Taylor, 3 De Gex, M. & G. 190; Leigh & D. Convers. 93; Lewin, Trusts, (8th Ed.) 149, 953. When the executor sold the lot, both he and the purchaser knew that the testator's personal property exceeded, by more than $1,200, the testator's debts and the expenses of administration; which defeated the power to sell under this clause, unless, as it is argued, the testator intended that these lots should be sold, and the avails applied towards the payment of his debts, for the purpose of relieving to that extent the personal estate from the burden imposed by the rule of the common law that it is primarily liable for the payment of debts, and must be first exhausted, unless there is a clear direction that the real estate, or some part of it, shall be first so applied. This question was considered in Heermans v. Robertson, 64 N. Y. 332, where it is said: ‘The order of marshaling assets for the payment of debts is to apply- First, the general personal estate; second, estates specially devised for the payment of debts; third, estates descended; fourth, estates devised, though generally charged with the payment of debts. 2 Williams, Ex'rs, 1526, note 2; Livingston v. Newkirk, 3 Johns. Ch. 312; 4 Kent, Comm. 420. In order to effect a change in the order, there must be some absolute and positive direction, clearly indicating an intent to relieve the class of assets primarily liable, and to charge some other portion of the estate in exoneration of the funds and property primarily liable. A mere direction to an executor to sell real estate does not make the proceeds necessarily liable as personal assets, but they will be only applicable to the payment of debts when the assets personal in their character shall have been exhausted.’ Page 344. Before the personal estate of a testator will be discharged from the burden of paying the debts, it must clearly appear that he intended that it should be, which will not be inferred from the fact that authority is given to sell all or some part of the real estate for the payment of debts, and especially in a case where, as in this, no disposition is made of the personalty. Gray v. Minnethorpe, 3 Ves. 103; Hartley v. Hurle, 5 Ves. 540; Hancox v. Abbey, 11 Ves. 179. Under this clause the executor had no power to sell the lot in question

It remains to be considered whether the sale can be sustained under the power contained in the earlier part of the will, which provides: ‘I also desire and authorize my executors to sell and convey all 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 said Niagara river; and it is my desire that the said land shall be sold in a body, for commercial purposes.’ Powers, as they existed prior to January 1, 1830, were abolished by article 3 (‘Of Powers') of title 2 of chapter 1 of the second part of the Revised Statutes, (section 73,) which article was intended to be a codification of the law under which powers were thereafter to be created, governed, and construed. Cutting v. Cutting, 86 N. Y. 522;Hutton v. Benkard, 92 N. Y. 295, 305. As to beneficial powers, it is enacted by the ninety-second section that none except those enumerated in the article shall be valid. ‘A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform.’ Section 74. All powers are divided into two general classes,-beneficial powers and powers in trust. ‘A * * * power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution.’ Section 79. ‘A * * * power is in trust when any person, or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the land, according to the power.’ Section 94. These powers are subdivided into general and special powers. ‘A power is general when it authorizes the alienation in fee * * * of the lands embraced in the power to any alienee whatever.’ Section 78. Special powers are defined in the seventy-eighth section, but it is unnecessary to call attention to the definition, as it is agreed by counsel, and is clear, that the power claimed to be created is a general one. To create a valid power, either beneficial or in trust, it is indispensable that the object or objects to be benefited by its execution shall be specified in, or be clearly ascertainable from, the instrument by which the power is attempted to be created. Jennings v. Conboy, 73 N. Y. 230; 1...