Hollenbach v. . Born

Pound, J. Before the revision of the section of the Code of Civil Procedure relating to Surrogates’ Courts in 1914, now the Surrogate’s Court Act, section 2613 of the Code provided that administrators with the will annexed shall “ have the rights and powers * * * as if they had been named as executors in the will.” It was held, however, that a naked power of sale of real estate conferred upon the persons named as executors of a will, discretionary in the sense that it is not imperative, unnecessary for the testator’s scheme of administration of his estate, did not pass to the administrator with the will annexed, not for the reason that the power was discretionary, but for the reason that it was not annexed to the office of executor and did not pass to those who succeeded to the general administration of the estate. (Clift v. Moses, 116 N. Y. 144; Coann v. Culver, 188 N. Y. 9.) As was said by Finch, J., in Mott v. Ackerman (92 *37 N. Y. 539, 553): “ It will not do to say, * * * 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.” The appointment of an executor always implies not only the exercise of discretion by the executor but also personal trust and confidence, yet the power and duty of an executor virtuti officii are vested in and exercised by an administrator with the will annexed. Other powers vested in the person named as executor do not lapse when the executor dies although they are not vested in his successor by operation of law. (Greenland v. Waddell, 116 N. Y. 234.) The power of sale is a power in trust, which although discretionary, might on the death or removal of executors be executed by a person appointed for that purpose. Under the Revised Statutes, upon the death of a trustee of an express trust, or the donee of a power in trust, the trust or the power in trust vested in the Court of Chancery to be exercised by its appointee. (Chap. 6, §§ 68, 102, now Real Property Law [Cons. Laws, ch. 50], §§ 111, 182.) Although the question whether these provisions applied to a discretionary power of sale conferred on the executors of a will was held open in Coann v. Culver (supra), although no reported case seems to have depended solely upon its application, and although a dictum appears in Lahey v. Kortright (132 N. Y. 450, 456) that “ a mere power of sale is discretionary and does not survive the donee of the power,” the rule has often been stated as applying to such a power. (Cooke v. Platt, 98 N. Y. 35, 39.) For the purpose of doing away with the confusion arising out of the many cases on the subject, the revisers of the sections of the Code of Civil Procedure dealing with Surrogates’ Courts added to section 2613, renumbered section 2695, now section 225, Surrogate’s Court Act *38 (L. 1914, ch. 443), the following: “ Where power to mortgage, lease or sell real estate is given by a will to an executor or trustee, an administrator with the will annexed or a successor trustee may execute such power in any case where the original executor or trustee could execute .the same, unless contrary to the express provisions of the will.” Provision is made that in fixing the penalty of the bond of an administrator with the will annexed the surrogate shall take into consideration the value of the real property or proceeds thereof which may come into the hands of the administrator with the will annexed by virtue of any provision contained in the will. (Code Civ. Pro. former § 2645, renumbered § 2605; Surrogate’s Court Act, § 135.) The appellant contends that the amendment of 1914 above quoted vests no authority in the administrators with the will annexed because the will of the testator was dated May 3, 1887, and probated March 28, 1901; that no contrary intention appearing, the law must be construed as operative only upon wills taking effect subsequent' to the amendment of 1914, and the powers of administrators with the will annexed of wills thereafter probated. (Anderson v. Mather, 44 N. Y. 249.) Doubtless the amendment relates only to the powers of administrators in the future. It is not curative in its character, nor is it intended to have a retroactive effect on deeds of administrators antedating its enactment. It looks to the future ahd is applicable only to subsequent acts. Unless a contrary intention appears, laws operate only in the future and upon future transactions (Rhodes v. Sperry & H. Co., 193 N. Y. 223; Standard C. & M. Corp. v. Waugh C. Corp., 231 N. Y. 51, 58), but changes in the form of remedies constitute an exception. (Jacobus v. Colgate, 217 N. Y. 235, 240.) The legislature may at its will define the future powers of administrators with the will annexed unless in so doing it changes existing substantive rights. It is not within *39 the power of the legislature to change vested rights of persons in property. (People v. Powers, 147 N. Y. 104, 109.) But no such change is here effected. The life tenant and the remaindermen took the real property of the testator subject to the execution of a. power of sale which did not lapse by the death of the executors. The amendment does not purport to revive a lapsed right. If it did, it would be inoperative, It does not create a power where no power existed. A new method is provided for the execution of the power without resort to the Supreme Court. No radical modification was made in the existing law. The estate of the life tenant and the remaindermen is not abridged. It was competent for the legislature to say hów an outstanding and unexercised power of sale should be exercised after the death of the donee, except as the provisions of the will in terms make the power a personal one, ending with the life of the donee. • It has done no more. In the absence of words of exclusion, the amendment is applicable to the powers of administrators with the will annexed appointed after its adoption, although the will took effect before. (Sackheim v. Pigueron, 215 N. Y. 62.) It is not necessary to give it a retroactive effect to make it operative. It applies to deeds of conveyance executed after it took effect and does not operate to modify existing wills. It is urged that the life tenant and the remaindermen are more effectively protected by the administration of the power in the Supreme Court. We see little force in the contention. The tendency has been to enlarge the powers of the Surrogate’s Court in the administration of estates and, for substantial reasons of simplicity and convenience, to confer upon it some jurisdiction previously exclusively exercised by the Supreme Court. The surrogate has power, for example, to appoint successors to testamentary trustees who may proceed and execute the trust. (Surrogate’s Court Act, § 168; Royce v. Adams, 123 N. Y. 402.) *40 The rights of the beneficiaries are amply protected on proceedings for the appointment of administrators with the will annexed. The judgment should be affirmed, without costs. Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Hjscock, Ch., J., absent. Judgment affirmed.