Ackerman v. . Gorton

Andrews, J. The children of Belding Hoyt, upon his death, took under his will a vested estate in remainder in the lands devised to his wife for her Kfe. The words “ from and immediately after her death,” did not operate to postpone the vesting of the remainder in the children until the death of the Kfe tenant, but by well settled construction denoted simply the period when they would become entitled to the estate in possession. (Livingston v. Greene, 52 N. Y., 118; Taggart v. Murray, 53 id., 233.) But the estate of the remaindermen was Kable to be divested by a sale of the land by the widow under the power given by the will. The claim that the power given to the Kfe tenant to dispose of the fee, enlarged her estate to a fee is not weK founded. (1 R. S., 732, § 81.) The power of disposition was not absolute. It was given on condition that it should not be exercised without the approval of the testator’s hens, surviving when the sale was made. The object of the power seems to have been to enable the widow, with the consent of the children to convert the real estate into money, so as to give her the income for her support instead of the rents and profits of the land. The power was not a beneficial one within the definition of the statute. (1 R. S., 732, § 79.) It was not the intention of the testator to give the widow the whole proceeds of the land in case of sale. The express gift of the remainder to the children, and the provison that the land should not be sold without their consent is inconsistent with such a construction of the wiK. In case of a sale under the power, the tenant for Kfe, and the devisees in remainder would take the same interest in the proceeds as they had in the land; the income would belong to the widow for Kfe, and the principal after her death to the children. The judgments against Anson B. Hoyt one of the sons of the *67 testator, obtained before a sale had been made under the power, became a lien on his interest in remainder in the lands of the testator. But this did not prevent the power from being thereafter exercised. The right of the judgment creditors was subject to it, and a bona fide sale of the land, made in pursuance of the power, would give to the purchaser a good title, free from the lien of the judgments. The lien of the judgment creditors in case of sale would be transferred from the land and attach to the interest of the judgment debtor in the proceeds. The will of the testator is to be observed, and his purpose ought not to be defeated, as it would be if it should be held that the land could not be sold under the power, or if sold, that the sale should be subject to the lien of the judgments. We are of opinion that upon the facts stated in the case, the plaintiff has a good title to the land embraced in the contract, and that the defendant should be decreed specifically to perform it. The judgment of the General Term should be reversed, and judgment ordered in conformity with this opinion. All concur; Sapallo, J., absent. Judgment reversed, and judgment accordingly