
    Henry R. Mygatt, Plaintiff, v. Richard R. Maslen, Defendant.
    First Department,
    December 30, 1910.
    Will construed. — when will does not fail because of invalidity of part — real property — vendor and purchaser—specific performance—failure to make heirs of former owner parties.
    Á will directed the residuary estate to be divided into as many equal shares as there were children surviving and deceased children leaving issue. Four children received shares outright, while the fifth share was placed in trust for a daughter who was to receive the income for life, at her death the principal to be divided into as many shares as she might leave children to be held until each child became of age and then paid over. It was further provided that “ In case any child of my said daughter who may survive her shall-die before attaining-the age of twenty-one years, the share so held in trust for him or her, * * * shall be equally apportioned to and among the shares held in trust for his or her surviving brothers and sisters." .
    
      Held, that assuming the . last clause to be invalid, it could be deleted from the will without destroying the testator’s general scheme in the disposition of his residuary estate.
    A vendee having contracted to buy lands of the estate from executors having a power of sale will be compelled specifically to perform where the facts are not disputed and there are no doubtful questions of law, even though the heirs and representatives of the testator are not parties to the action.
    Submission of a controversy Upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      David B. Ogden, for the plaintiff.
    
      Harold Swain, for the defendant.
   Scott, J.:

This is a controversy submitted upon an agreed case, and concerns the marketability of plaintiff’s title to a piece of real property.

On January 17, 1910, the parties entered into a written agreement in the usual form, whereby the plaintiff agreed to sell and defendant agreed to buy a plot of land on Emerson street in the borough of Manhattan, city of New York. It is agreed that at the appointed time and place the plaintiff tendered performance, but defendant refused to perform, stating as his reason for so refusing the following objection to plaintiff’s title: “ The clause in the second codicil of the last will and testament of William B. Isham, which creates a trust for the benetit of Plora I. Collins, a daughter of the testator, is invalid as countervening Section 42 of the Beal Property Law. This invalidity affects the entire will, and as the power of sale in the executors, through the exercise of which the present owner acquires title, must be .exercised for the purpose of carrying out the provisions of the will, the invalidity of the testamentary disposition likewise renders invalid the power of sale, and the title of the present owner, therefore, is not a good and marketable one.” It is conceded that there are no other objections to the title.

William B. Isham, from whose executors the plaintiff derived title, died on March 23, 1909, leaving a last will and testament and two codicils thereto, all of. which were duly admitted to probate, and letters testamentary issued to Hamilton Odell and William B. Isham, who qualified, as executors, although they duly renounced their appointment by said will as trustees of the trusts created by said will, and codicils. By his will William B. Isham, in addition to disposing of his estate, gave to his executors full power and authority to sell and convey any real estate of which lie might die seized, except that as to one plot, not involved in this controversy, such sale could be made only with the-consent of his widow. The first codicil related merely to a change of executors and trustees. It is under the second codicil that the question, in controversy here arises. By that second codicil the testator revoked the 4th clause or paragraph of his will, which related to the disposition of his residuary estate, and made a new disposition thereof. He directed that his said residuary estate should be divided into as many equal shares as he should leave ■ children (except one who was otherwise provided for) living at his decease and children who should then be dead leaving issue. To each of three'sons and to one daughter he gave shares outright. The fifth share he left in trust for his daughter Flora, directing that the principal be held for her during her life, and the income paid over to her, and that at her death said principal should be divided into as many shares as she might leave children, the share of each child being held until it came of age and then paid over. Then follows the sentence upon which the asserted invalidity of plaintiff’s title rests. It is as follows': “In case any child of my said daughter who may survive her shall die before attaining the age of twenty-one years, the share so held .in trust for him or her, and all accumulations of income, shall be equally apportioned to and among the shares held in trust for his or her surviving brothers and sisters.’’- It is not our purpose to. consider whether this provision is-valid or not,. Counsel for botlr parties have assumed, for'the purposes of this controversy, that, it is invalid, at least as to the personalty. (Manice v. Manice, 43 N. Y. 303.) We shall, therefore, proceed upon the same assumption. ■ The question then is whether or not, assuming the invalidity of this clause, it imparts its invalidity to the whole will, or may it be disregarded. In Manice v. Manice (supra) it was held that the invalidity of a similar, provision did-not destroy the will. The. same rule was applied in the closely analogous case of Tiers v. Tiers (98 N. Y. 568), and in Kalish v. Kalish (166 id. 368) tlie Court of Appeals stated the .rule applicable to such cases as follows: “ The rule * * * is now firmly established in this State that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the will must fail altogether; but when it is possible to cut out the invalid provisions, so as.to leave intact the parts that are valid, and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total, as the case may be.” This is an appropriate case for the application of this rule for we entertain no doubt that the supposedly invalid provision may be deleted without destroying" the general scheme for the disposition .of the residuary estate or otherwise invalidating the will. The defendant urges, however, that he should not be required to complete the purchase' because no judgment to be made herein will bind the heirs and representatives of William B. Isham, deceased, who are not parties to this controversy, and we are cited to a number of cases wherein purchasers have b.een relieved under like circumstances. ' It is quite true that the court will not compel a purchaser to take a doubtful title, and if the question involved depended upon any disputed matter of fact, or was doubtful as a matter of law the cases cited by defendant would be apposite and we should not hesitate to follow' them. The facts, however, are not in dispute, and we do not find any doubtful question of law. There must, therefore, be judgment for the plaintiff,- with costs, answering both of the submitted questions in the affirmative, and requiring the defendant to specifically perform the contract attached to and mentioned in the submission.

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.

Judgment ordered for plaintiff, with costs. Settle order on notice. 
      
       Consol. Laws, chap. 50 (Laws of 1909, chap. 52), § 43.— [Rep.
     