Mott v. . Ackerman

Finch, J. The validity of the title tendered to the purchaser in performance of the contract of sale depends, primarily, upon the construction of the will of Henry Mott, and those, respectively, of his three daughters. As to that of the father it is objected that the power of appointment by will, conferred upon such of them as should die unmarried and without issue, did not extend to and embrace the fee of any of his real estate. It had that effect or none. The daughters had each a life estate under a trust vested in the executors. Upon their deaths, or that of any one of them, the remainder in fee was left for ultimate disposition. An appointment by will could not relate to their life estates, for those would be ended by the same fact which made the appointment operative and at the same moment of time. The power, therefore, must naturally be a power in gross, and relate not to the life estate, but to the remainder in fee; and that it did so is evident from the three provisions «which contemplate the death of the daughters. *548 Those are adapted to three emergencies, viz.: (1) the death of a daughter married and leaving issue and a husband surviving; (2) the death of a daughter unmarried and without issue; (3) and, in the latter event, her death, without exercising the power of appointment. In the first event the executors were to stand seized for the use and benefit of the issue; in the second, for the purposes which the daughter should by will appoint; and in the third, for the use and benefit of such daughter’s next of kin. In each event the trust in the executors would be purely passive, and the remainder vest in the beneficiaries. The criticism upon this construction is founded upon the words “ upon such trust and for such purposes as she shall or may appoint by her last will and testament.” It is quite evident that the phrase “ upon such trust ” means not a trust to be created by the daughter and so limiting her power of disposition, but relates to the trust in the executors ; the same trust twice before mentioned and once afterward ; in each instance held for different beneficiaries ; and in the second of the three con. tingencies, for such purposes as the appointee should provide. The slight change of phrase from “ upon trust ” to “ upon such trust ” cannot be held to import the wide difference of intention asserted. ISTo trust to be created by the will of Esther is foreshadowed or indicated by any apparent intention of the testator. If she sought to make one, it could not introduce a third life estate before the vesting of the fee, and it is difficult to see any useful purpose operating upon the testator to induce such a limitation. It seems to us quite plain that he meant for each of his daughters very nearly an estate in fee, by giving them not only an estate for life, but a power of disposition by will in case of their remaining unmarried; and a limitation confining that power to the creation of some trust, not defined, not intimated, left wholly at large, has no reason to support it, and is not forced upon us by the language of the will. The inquiry why the testator forfeited only the income of the married daughter in case she paid any of her husband’s debts does not affect our conclusion. The obvious answer to the suggestion is that she had only that to be forfeited which *549 could be supposed to influence or affect her action. To strike instead at her power- of appointment would have been not only ineffectual as a restraint, but would have pushed the consequences beyond her death. It is next objected that the will of the unmarried daughter Esther, who died before her sisters, was not a valid execution by her of the power of appointment as to one-third of the estate. But the' statute provides that lands embraced in a power to devise pass by a will which purports to convey the whole real property of the testator, unless a contrary intention is manifested. Esther’s will directs the payment of debts and funeral expenses, and then gives to her sisters all the rest, residue and remainder of her estate, both real and personal, of every nature whatsoever and wheresoever. (1 It. S. 737, § 126.) The language is broad and brings the case clearly within the rule prescribed by the statute. But it is further said that the disposition by «Esther’s will is invalid because it suspends the absolute power of alienation beyond the permitted lives; that the computation must run from the creation of the power in the will of her father; and so there is an estate for life in Esther; then a devise to the two sisters, Eliza and Maria; then one 'to the survivor of the two; and lastly one to the heirs, executors, administrators and assigns of such survivor. The last alleged limitation is very certainly not such. It is intended merely to characterize as a fee or absolute estate in the land or its proceeds, if converted, the interest vested in the survivor. The devise to Esther herself must be counted as one life. Then the estate passes to Eliza and Maria, but they take as tenants in common and not as joint tenants. (1 R. S. 727, § 44; Purdy v. Hayt, June, 1883*) Each became the owner of an undivided h,alf of Esther’s one-third, and would have owned such one-sixth absolutely but for the further limitation to the survivor. That, it is argued, adds a second life. But it is a fee limited upon a fee, which may lawfully bé done, where the contingency, if it should occur, must happen within two lives. (1 B. S. 724, § 24.) *550 The fee given to the one who shall first die is defeasible by such death, and thereupon the entire absolute estate vested, and could be aliened after two lives, at most. But the suspension did not exceed the life of Esther. Her sisters took legal estates in her one-third since the trust in her father’s executors, after her death, was passive, and did not prevent the vesting of the entire title. While each held her fee in one-sixth defeasible upon a contingency, and each had a. contingent remainder in the one-sixth of the other, these" estates were alienable, and the deed of the two sisters, immediately upon Esther’s death, would have conveyed an absolute fee in possession. These are all the objections affecting the Broadway property by itself, but others are taken to the validity of the title to the property on Thirty-fourth street, and to the power to make any conveyance of any of the property by reason of the death of the sole surviving executor of the sisters pen ding the present litigation. The property on Thirty-fourth street was purchased by and conveyed to Eliza and Maria, who owned it as tenants in common. Eliza died after Esther but before Maria. By her will she gave to her executors a power of sale to be exercised during the life of the latter with her concurrence. The will then proceeds: “ and on the death of my said sister Maria, or as soon afterward as they may think advisable, taking into view the condition of the country, and the probable increase in the value of the property, and within three yea/rs from the proof of this will, I authorize, empower and direct them to convert into money all my real and personal estate, which conversion shall be treated in law as if it had happened at the time of my sister’s decease.” Maria lived more than three years after the probate of Eliza’s will and no sale was made until after her death, and about twelve years after the probate of Eliza’s will; and that was the sale to these defendants. It is now said that the power of sale could only be exercised within the three years, and that the deed of the executors tendered long after that period was invalid. But the testatrix added to her au *551 thority a command. She not only empowered her executors to sell, but directed them to do so. The purposes of the will required such sale, and the power was imperative. (1 E. S. 734,.§96.) The neglect or misconduct of executors ought not to defeat the purposes of the testator, or destroy the rights which depend upon their proper performance of duty. We are not justified in supposing that any such result was within the contemplan tian of Eliza, and should, therefore, read the provision’ for a sale within three years as not limiting the authority, but qualifying the command. The meaning is, I “ authorize ” you to sell, and I “ direct ” you to do so within three years after probate. It was an injunction to promptness in the exercise of the authority. Neglect to obey the command did not destroy the authority conferred. Nothing in the frame of the will indicates an intention to narrow or hamper the power to sell, but on the contrary the very provision as to time indicates a purpose to have the power exercised, and that promptly and without delay. Any other construction would force us to say that the power was not imperative, and that the testatrix intended to make the whole purpose and plan of her disposition contingent upon the discretion of her executors in selling or not selling within three years. During the fife of Maria, her assent was essential to a lawful sale. While she lived her interest and welfare was the paramount consideration. She lived, longer than the three years and it must be presumed withheld her assent to a sale. The executors, therefore, could not literally obey the direction of the will, and were not even blamable for the delay. Probably, just that emergency was not expected, but whether anticipated or not, the power of sale was and was intended to be imperative, and was not limited by the injunction as to time which qualified the command. The remaining difficulty suggested by the appellant is one which has arisen since the commencement of the litigation and upon which we pass out of deference to the serious interests involved. It is conceded that since the tender of the deeds by *552 the sole surviving executor and the judgment of the Special Term pronouncing them sufficient, and its affirmance by the General Term, the executor has died ; that, thereafter, Henry A. Mott was duly appointed administrator with the will annexed of the estates both of Eliza and Maria; and that the action has been revived in the name of such administrator. The questions thus raised are whether the deeds executed by the deceased executor in his life-time and tendered to the purchaser can be now delivered, or be treated as delivered with the effect of passing the title; if not, whether the administrator with the will annexed can make the conveyance; or whether a trustee must be appointed by the Supreme Court for the purpose of an effective deed. It is argued that the tender by the executor amounted to a conditional delivery of the deed ; that the refusal to accept put solely upon the ground of doubt about the title, amounted to an acceptance upon condition that the title should be adjudged good ; and that the decision of the Special Term performed the condition. We are not able to go so far as that. There was a tender but no delivery, for a delivery which vests title implies an acceptance, and here there was a refusal. We can say that a good title was offered but not that the deed was delivered. A delivery now, after the death of the executor, would be ineffectual. But we are of opinion that the administrator with the will annexed has authority to make the necessary deed. The question has been left by the disagreement of the courts in some uncertainty which should be dispelled so far as it is possible to do so. The statute provides that administrators with the will annexed “ shall have the same rights and powers and be subject to the same duties as if they had been named executors in such will.” (2 R. S. 72, § 22.) In construing this statute great differences of opinion have arisen. (De Peyster v. Clendining, 8 Paige, 296; Conklin v. Egerton, 21 Wend. 430 ; 25 id. 224; Roome v. Philips, 27 N. Y. 357; Bain v. Matteson, 54 id. 663; Bingham, v. Jones, 25 Hun, 6.) The *553 debate has turned mainly upon the inquiry what were the distinctive duties of an executor as such, and when they were to be regarded as not appertaining to his office, but as personal to the trustee. Where the will gives a power to the donee in a capacity distinctively different from his duties as executor, so that as to such duties he is to be regarded wholly as trustee and not at all as executor ; and where the power granted or the duty involved imply a personal confidence reposed in the individual over and above and beyond that which is ordinarily implied by the selection of an executor, there is no room for doubt or dispute. In such case the power and duty are not those of executors, virtute officii, and do not pass to the administrator with the will annexed. But outside of such cases the instances ¡are numerous in which by the operation of a power in trust authority over the real estate is given to the executor as such and the better to enable him to perform the requirements of the will. It will not do to say, in the present state of the law, that whenever a trust or trust power is conferred upon executors, relating to real estate, some personal confidence distinct from that reposed in executors is implied. An executor is always a trustee of the personal estate for those interested under the will. We have recently so decided where the trust character could only be derived from the office and its relation to rights claimed through it.. (Wager v. Wager, 89 N. Y. 161.) And we have held, also, that, where a will devised and bequeathed to the executors the residue of real and personal estate, in trust, to sell and convert the same, to divide the balance into shares, to invest it in bond and mortgage, and to pay over the income for a time and finally the principal, the proceeds of the land sold became legal assets in the hands of the executor, for which he was liable officially, and for which his sureties were responsible ; and that an objection that he held the proceeds as trustee, and not as executor, and could only be made accountable in equity, was not well taken. (Hood v. Hood, 85 N. Y. 571.) We have no doubt, therefore, that where a power of sale is given to executors for the purpose of paying debts and legacies, or either, and. *554 especially where there is an equitable conversion of land into money for the purpose of such payment and for distribution, and the power of sale is imperative and does not grow out of a personal discretion confided to the individual, such power belongs to the office of executor, and under the statute, passes to and may be exercised by the administrator with the will annexed. That is the case before us, and the deed of the administrator with the will annexed will be as effectual as would have been that of the executor if he had survived. We have given no attention to the questions relating to the possible interest of the heirs of Underhill, since a release from them was tendered upon the trial and must accompany the delivery of the administrator’s deed. The judgment should be affirmed, with costs. All concur. Judgment affirmed.