
    Isaac N. Odell, Individually and as Executor, etc., of Elizabeth D. H. Odell, Deceased, Plaintiff, v. Edward Claussen, Defendant.
    Second Department,
    June 7, 1907.
    Will construed—real property — power of sale — when executor’s deed passes good title.
    Under a will which gives all the property to the husband of the testatrix for life, remainder over to sisters of the testatrix, and provides that the husband, appointed sole executor, may in his discretion sell by public auction or private sale any or all of the real estate and give good deeds of conveyance, the executor, although himself a life tenant, has power to convert the real estate and can convey, good title which a vendee will be required to accept.
    
      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Oode of Civil Procedure.
    
      Robert Godson, for the plaintiff.
    
      George S. Espenscheid, for the defendant.
   Rich, J.:

We are asked to determine whether the plaintiff individually and as executor has power to convey a good marketable title to defendant of the premises described in the submission under the power of'sale contained in the-will of Elizabeth D. H. Odell, his wife. By the terms of her will' she gave, devised and bequeathed all of her property, both real and personal, unto her husband (the plaintiff), to have and to hold, use and enjoy the same, and the rents, issues, profits and income thereof for and during his natural life, with the remainder to decedent’s two sisters, and provided: ' “ Lastly: I hereby make, nominate, Constitute and appoint my said husband Isaac N., Odell sole' executor of this my last will and testament, and , hereby authorize and empower him in his discretion, to' sell either at public auction or1 private sale, any and all of my real estate, and ■ good deeds of conveyance give to the purchaser or purchasers; and. I further direct that he shall not be required to give security; hereby revoking all other or former wills' by me made.” September 18, 1906, the plaintiff entered into a contract whereby he agreed to convey to defendant the house and lot No. 731 Putnam avenue,, borough of Brooklyn; New York, which was_the only real estate left by decedent, subject to a mortgage of $4,500, for the- consideration of $9,200. At the time and place mentioned in the contract, plaintiff tendered to defendant a duly executed and acknowledged executor’s deed of said premises which contained, among other clauses, the following: And all the estate therein, which the said party of the first part (plaintiff) has, or has power to convey or dispose of, whether individually or . by virtue of said , will or otherwise.” Defendant refused to accept this deed on the ground' that plaintiff, being a life tenant, could not convey a valid title to the premises. The plaintiff is a feeble old man seventy-eight years of- age, and dependent upon the property left under this will for his support. Nothing is received from the real estate, and his only • income is the interest on $3,343.86 deposited in a trust company, out of which he must first pay taxes and interest charges upon the real estate. The decedent left no children. She provided for the comfort and support of her husband out of the income of her property; presumably she knew that 'the rents and profits of the real estate, together with the income on the money deposited in the bank, would be insufficient for the purpose, and we think she intended to give her husband power to convert the, real estate into property yielding a greater return, and, therefore, authorized him to convey the real estate by virtue of Ms office. (Cotton v. Burkelman, 142 N. Y. 160.) The learned counsel for defendant relies upon the cases of Rogers v. Rogers (111 N. Y. 228). and Haendle v. Stewart (84 App. Div. 274) as authority for the contention that plaintiff is not qualified to execute the power-in trust) and that his conveyance would’not convey a marketable title. In each of. these, cases the estate was left'to.more than one trustee in trust, and it was held that the sole surviving cestui gue trust could not exercise the power of sale alone,, and that in stich cases the court could either supply the places of the other trustees or take upon itself the execution of the trust. Those cases are clearly distinguishable from the one at bar, and the plaintiff must have judgment in accordance with the terms of the stipulation.

ITirsohberg, P, J., Hooker and Miller, JJ., concurred; Gaynor, <L, concurred in result. : '■ . 1

Judgment for the plaintiff, with costs, in accordance with the terms of the submission.  