Macy v. Sawyer

Van Vorst, J. — There is no gift to the executors, in terms, of any estate in the realty. Nor is there any duty or trust imposed upon them with regard to its management. The gift is directly to the testator’s wife of the rents and profits. Had the executor been invested with the duty of collecting and applying the rents and profits an estate therein, [383] by implication, might be found to exist in them commensurate with the duration of the duty or frust imposed by the testator. But there is nothing in the will which indicates an intention on the part of the testator to create a trust in the executors, in the real estate or its rents and profits. They are not directed to collect or pay over the rents to the widow. To devise an estate by implication there must be such a strong probability of an intention to give one that the contrary cannot be supposed (Post agt. Hover, 33 H. Y., 593, 599). But the gift to the testator’s widow, of all the rents and profits, creates in her an estate for life. For a devise of the income, rents and profits of land, when there is nothing to qualify the gift, will convey the property itself to the devisee. The executors, however, have a qualified power of sale, but the power is so limited by restrictions that it is practically inoperative, and as it can prove no convenience to the devisees or the estate it may be wholly disregarded, for the testator declares that none of the real estate shall be sold, except in case of-absolute necessity and for the benefit of the estate, and then only upon the consent of his héirs, by whom he means the devisees thereof. This limitation refers exclusively to the exercise of the power intended to be given. As it appeal’s that the testator owes no debts, or only to a trifling amount, and that there is an abundance of personalty to answer all testamentary charges, there would seem to be no occasion for the exórcise of the power of sale, which could in no event be executed, the devisees not consenting. The conclusion reached is, therefore, that the devisees take the real estate absolutely, subject only to the life estate in the widow, and that the life estate in their mother is the only restraint upon their absolute power of disposition of the realty. The ordinary annual taxes of all kind, and such repairs as prudence requires by way of keeping the buildings in good tenantable condition, is a charge upon the income and must thus be borne by the tenant for life. I discover nothing in the seventh clause of the will creating [384] a trust in the executors with regard to the proceeds of real estate, if any should under the restrictions suggested, be sold. Upon such contingency the proceeds are to be deposited in a savings bank, in trust for the benefit of the person to whom the same is devised, and the deposit should be made payable to such person, after the death of the widow, to whom the interest should meanwhile be paid. All there is of this is, that in such event the savings bank would become the trustee and guardian of the fund, during the widows life, and that the remaindermen would be entitled to receive it from the bank upon her death. But such change of the reality into personality, when the low rate of interest paid by savings bank is considered, is highly improbable under any circumstances. But it is useless to speak farther of a power which is nominal only. All the testator’s personal property, consisting of chattels and movables, with the exception of what is given to his sons by the fourth paragraph of the will, is given directly to his wife. But it appears that the testator owned other personal property not included under the above description, which is disposed of by the- ninth clause of the will, in these words^ “ I give, devise and bequeath the rest and residue of my estate not hereinbefore mentioned, real as well as personal, after my said wife’s death, to my said three children, share and share alike.” With regard to the personal property disposed of by this gift, it appears to me clearly that the widow is entitled to the income thereof for life. That is implied by the gift to the children, of the principal, after her death. The fact that the children are excluded from the possession during their mothers life, is an indication that the testator designed the income for her, so long as she should live. This subject is carefully considered by surrogate Bradford in Doughty agt. Stillwell (1 Brad., 300, 310), as also in Dale agt. Dale (13 Penn. St. R., 446). The rule seems to be, that a gift to the testator’s heir, after the death of A. confers on A. an estate for life by implication; [385] but a gift to B., a stranger, after the death of A., does no confer an estate on A. by implication (1 Jar. on Wills [5th ed., by Biglow], 533). Unless the income gave to the widow, through such implied bequest thereof, it would be undisposed of. There is no residuary clause into which it would drop. ■ It is clear that the testator did not mean to leave any part of his estate outside the operation of his will. The gift of $1,000 to the daughter of the testator is not payable until after the death of the testator’s wife. But doubtless with the consent of the tenant for life and others in interest it could be paid earlier. The above conclusions disposed of all the questions raised by counsel, and in accord therewith judgment must be entered for the construction of the will.