
    Michele Turco, Respondent, v. Guiseppa Trimboli and Gaetano Lopice, Appellants.
    Second Department,
    September 10, 1912.
    Real property — will — devise to executors with, power of sale — power to sell does not include power to exchange lands — when title not marketable.
    A will directing an executor to whom an undivided portion of lands held in common have been conveyed in trust to sell them in his discretion for cash, or on credit, or for part cash and part credit as he shall deem most to the advantage of the estate, creates a naked power in trust and the testator’s interest in the lands passes upon his death to his heirs or devisees subject to the execution of the power.
    Under such power the executor may only make an actual sale for cash or credit, or part cash and part credit. He has no authority to exchange the lands for other lands.
    Hence, where the executor conveyed the lands to the other tenant in common in exchange for other lands held by her she does not acquire a good title in fee.
    A vendee entitled to a marketable title in fee simple from the party to whom the executor conveyed is entitled to recover earnest money paid.
    Appeal by the defendants, Guiseppa Trimboli and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of September, 1911, upon the. decision of the court, rendered after a trial at the Kings County Special Term, in an action to recover money paid by the plaintiff to the defendants under the provisions of a contract for the sale and purchase ' of real property which the defendants claimed to own, and which they undertook to convey by a good title in. fee simple.
    
      Forrest S. Chilton, for the appellants.
    
      Edward J. Flanagan, for the respondent.
   Rich, J.:

The premises involved, with considerable other real property, was owned at the time of the death of Aaron Clark by him and Harriet A Anderson in common. Clark devised his undivided interest in said property to his executor in trust, for division, among his devisees and legatees, his will providing: “And as to my real estate in his discretion to sell and dispose of the same either at public or private sale for cash or on credit, or part cash and part credit as he shall deem most for the advantage of my estate.” The proceeds were to be divided between persons named in said will: The executor conveyed the interest of his testator in the land involved in this action to Harriet A. Anderson, the joint owner, the consideration of such conveyance being a deed to him of her interest in other realty owned in common by her and Clark at the time of his death. The title of the defendants rests upon this deed. The precise' question presented is whether the executor of Clark possessed the power which he assumed to exercise, and whether his deed to Mrs. Anderson vested a good title in her in fee simple to the land therein described. The learned Special Term held that it did not, and in such conclusion I think it was right.

Under the provisions of the- will the executor was vested with a naked power in trust, and the testator’s interest in the premises passed upon his death to his heirs or devisees, subject to the execution of such power. (1 E. S. 729, §§ 56, 58, 59; Id. 730, § 65; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52],.§§ 97, 9.9, 105; Matter of Arensberg, 120 App. Div. 463; Matter of Cooney, 112 id. 659; Sweeney v. Warren, 127 N. Y. 426; Weeks v. Cornwell, 104 id.. 325, 338; Chamberlain v. Taylor, 105 id. 185; Konvalinka v. Schlegel, 104 id. 125; Foersch v. Schmitt, 55 Misc. Rep. 608.) The power in trust was not well executed. Under it the executor was limited to an actual sale for cash, on credit, or part cash and part credit, and his powers did not extend to an exchange of property. (Powers v. Bergen, 6 N. Y. 358; Briggs v. Davis, 20 id. 15; Roome v. Philips, 27 id. 357; Russell v. Russell, 36 id. 581; Scholle v. Scholle, 113 id. 261, 274; Woerz v. Rademacher, 120 id. 62, 68; Moran v. James, 21 App. Div. 183.)

It is urged that the beneficiaries are estopped from asserting any claim to the premises. I do not think this contention good. There is a risk involved in taking title; the plaintiff is entitled, to-,a marketable title, and such right must be protected and enforced. (Moore v. Appleby, 108 N. Y. 241; Harris v. Strodl, 132 id. 392, 391.) The defendants undertook to convey the premises to plaintiff by a good and marketable title, free from serious doubt, and the evidence establishes their inability to perform their contract obligation.

The judgment must be affirmed, with costs.

Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred.

Judgment affirmed, with costs.  