
    Gideon Lee Knapp and ano., Resp’ts, v. Maria M. Knapp, individually and as Executrix, et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    1. Wills—Power of sale—Construction of.
    The testator by his will authorized his executrix, etc., "for the purpose of paying debts or necessary expenses, or of making partition or division, or for any of the purposes of this will, to sell, etc." Held, that this power of sale is discretionary. The intention of the testator, which is the guiding rule of interpretation, to invest his executors, etc., with absolute discretionary power to sell is manifest. Nothing can be much more sweeping than the phrase “for any of the purposes of this will,” which includes every possible phase in which such an instrument can be considered.
    
      % Same—Life estate—Power of sale—Limited by—How executed.
    The wife of the testator, who became the surviving executrix, with a power of sale, was also by the terms of the will entitled to her life interest, m the property. Held, that by joining in the sale individually and as executrix, she could thus execute a perfect transfer of the property. The widow is entitled to a life estate, and she joins in the contract upon which the property is to be sold, and therefore the only impediment is by her act removed.
    
      Appeal from so much of the judgment as determines that the power of sale contained in the will of William K. Knapp is not a valid and existing one.
    
      J. A. Burr, for app’lts; S. H. Comber, guardian, etc., for resp’ts.
   Brady, J.

—Upon the hearing of this case at the special term two questions were presented for consideration, one of which was whether the executors of William K. Knapp, or the survivor of them, had a valid power to make partition and division of any real estate of which he died seized in common with others, and the other was whether the power of sale contained in the will was sufficient to enable the executrix to convey a title to certain property, a part of the testator’s real estate, for which a contract of sale had been made.

The learned trial judge held that the power to make partition was valid, but that the power of sale could not be exercised, inasmuch as until the termination of the life estate given to the widow no partition of the testator’s property could be made.

The fifth clause of the will under which the power of sale, if it exists, is conferred, is as follows :

Fifth I authorize and empower my said executor and executrix, or such one of them as may qualify and take upon him or herself the execution of this my will, and the survivor of them, in his or her discretion, for the purpose of paying debts or necessary expenses, or of making partition and division of my estate, for any of the purposes of this my will, to sell, either at public auction or private sale, and upon such terms as to them may seem proper, all or any of my real estate wheresoever situate, and good deeds or instruments of conveyance thereof to make, execute and deliver.

It will become apparent that the power of sale is discretionary, although it may be thought that the purposes for which it is to be exercised are restricted. The power may be exercised for the purpose of paying debts or necessary expenses, or of making partition and division of his estate, or for any of the purposes of his will. And it appears by the sixth clause that the executors or the survivor of them might from time to time make actual partition and division of any real estate which at the time of his death he might have in common with any other person, and to do all things necessary to accomplish the perfect exercise of the power, in the same manner as if it had been completed by him before his decease.

The particular object of making the sale of the Beach street property, which is the only parcel the sale of which is contemplated, does not appear, and perhaps that fact has no important bearing upon the question, the power conferred being so broad. It is, as we have seen, for any of the purposes of the will. One of the purposes was to secure to his wife the enjoyment of the remainder of his estate, both real and personal, except what was disposed of by the first and second clauses, which substantially directed-the payment of his debts and funeral expenses and bequeathed ! to the widow certain personal property. She was, therefore, to enjoy the income of the estate, the remainder passing to his children living at her death, and the issue then living of any children then dead, such issue to take per stirpes and not per capita.

I‘t will have been observed that the authority to make partition from time to time was absolute; and if for that purpose, in the exercise of her discretion, the executrix thought it proper to sell any portion of the estate, the power was conferred.

It might well be that one distant parcel of property might not be susceptible of partition, and might complicate any attempt at a partition of the whole estate, and, therefore, become very properly the subject of a distinct independent sale in the exercise of a wise discretion, and which should be assumed to exist unless the contrary appear, which is not the case here.

It is true, as said by the learned judge in the court below, that the extent of the power depends upon the instrument creating it, and no intention is entertained of invading this principle, the power itself being regarded as sufficiently comprehensive to authorize a sale. The intention of the testator, which is the guiding rule of interpretation, to invest his executors, or the survivor of them, with absolute discretionary power to sell, is manifest. Nothing can be much more sweeping than the pharse “for any of the purposes of this will,” which includes every possible phase in which such an instrument can be considered.

It is thought, therefore, that the learned justice was in error in his construction of ■ the fifth. clause of the will which has been quoted herein.

But, independently of that view, it appears that the executrix, who is the survivor of the power, is willing to unite not only in the partition, but in the sale, both individually and as executrix; and, indeed, appeals with others from the judgment rendered below on the question of the power of sale, and thus all possible objection is removed which might be urged against the legality of the proceeding.

In Gast v. Porter (1 Harris Pa., 533), a kindred question was discussed. The will provided that at the decease of the testator’s wife the property specified for her use and benefit was to be sold and the amount divided equally among Ms children, one of them being excepted. The defendant claimed under the conveyance executed by the wife and the executors, and the plaintiff insisted that the deed was void for want of power in the executors to sell during the widow’s life. The court, in an elaborate opinion, held that the defendant’s claim under the deed was well established, the power to sell at the death of the widow being well executed if the' widow, for whose benefit the sale was postponed, joined in the deed.

Here the widow is entitled to a life estate and she joins in the contract upon which the property is to be sold, and, therefore, the only impediment, namely, the life estate, is by her act removed; and this seems to be a conclusive answer to the proposition that the power of sale could not be exercised during her lifetime. It is conferred upon her with an interest, and which interest, constituting the only obstacle to its exercise she removes by uniting in the transfer, thus setting at rest all questions concerning it.

For these reasons it is thought that the judgment should be reversed in the respects named; and it be decreed that a proper execution of the power of sale may be accomplished by the transfer by the widow individually and as executrix of the premises in question. The costs of tMs controversy to be paid out of the general fund.

Daniels, J.

—The court by its judgment sustained the agreement for the division of the property by actual partition. But declined to sustain the agreement for the sale of the Beach street lot which cannot be actually partitioned between the parties. This sale is necessary to complete the partition by the division of its proceeds among the owners of the lot. As the partition was authorized by the power given to the executrix in the will, it seems to follow that the sale itself has been equally authorized. For by the power contained in the will a sale was expressly authorized for the purpose of making partition and division of my estate or for any of the purposes of this, my will.” The facts brought a sale of this lot directly within this language. And as the life tenant is the executrix and herself consented to the sale, no other person can be at liberty to object to it. The deed should recite the fact of the sale being made to complete the partition and that -this lot is incapable of being otherwise divided, and that the sale is made for the purposes of the will, and under such a deed a clear title, will without doubt be conveyed. I, therefore, agree to the disposition of the appeal recommended by Mr. Justice Brady.

Van Brunt, P. J., concurs.  