
    John Cahill, as Executor, etc., of Elizabeth Broderick, Deceased, Respondent, v. Joseph H. Brennan, an Infant, etc., Appellant, Impleaded with Mary A. Russell and Others, Respondents.
    
      Leasehold —personal property — testa/menta/ry power to sell real estate.
    
    A leasehold is personal property for testamentaj-y purposes.
    A leasehold, held by a testator at the time of his death, being personal property, vests in the executor and is to be applied in the usual course of administration of the testator’s estate.
    A power of sale of real estate, under a will, is not to be inferred from the single fact that the. will gives legacies which in the aggregate exceed the value of the testator's personal estate.
    Nor is such power of sale conferred by, or to be inferred from the words, “ Until the sale and conveyance of said premises by my executor as hereinafter provided,” in a devise of the use of certain real estate, when no further orovision for the sale or conveyance of the premises is contained in the will.
    Appeal by the defendant, Joseph H. Brennan, an infant, by Terrence P. Brennan, his guardian ad litem, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2d day of February, 1893, upon a decision of the court rendered at the New York Special Term.
    The action was brought by the executor of the last will and testament of Elizabeth Broderick, deceased, for the purpose of obtaining a judicial construction of the will, especially with reference to the question of whether or not it was the intention of the testatrix that the executor should sell the real estate of which she died seized, or, at least, that portion thereof known as No. 22Y East Fifty-second street in the city of New York, and for the purpose of determining the amount due to the defendant, Joseph II. Brennan, a grandson of the testatrix, by reason of the lien or charge created on the leasehold property described in the complaint, by the will of his grandfather, the husband of the testatrix, said charge, amounting to $399 per year, commencing in his favor at the death of his mother, Elizabeth T. Brennan, which death occurred June 1, 1881, and no part of it having been paid by the testatrix to the said defendant for the period between the death of his mother, June 1, 1881, and the death of the testatrix, December 11, 1890.
    
      Tbe leasehold property consisted of the premises at the corner of ' First avenue and Fifteenth street in the city of New York, leased from the Astor estate, under a lease in the usual form used by that estate, executed on April 6, 1850, and which provided for two renewals of twenty years each, the last lease expiring May 1, 1910. Buildings had been erected on the premises by the then tenant, Cornelius Broderick, the husband of the testatrix, and the lease provided that such buildings were to become the property of the landlord at the expiration of the term.
    The subject of the leasehold was passed upon in the opinion of the trial judge (PattebsoN, J.), as follows:
    “ The leasehold is personal property. It was so at common law, and the legislation of this State has not altered its legal quality. Under the Revised Statutes, leases for years, lands held by a decedent from year to year and estates gper aui/re vie, go as assets to an executor or administrator. By the Code of Civil Procedure, the term “ real property ” includes leasehold estates where there is an unexpired term of five years, and also embraces buildings erected on the land; but the provisions of the Code do not change the nature of a leasehold. It is only for the purpose of enforcing a remedy by sale under execution, and to provide for redemption, that a leasehold is classified as real estate. It certainly cannot be held that, by the act of 1837, chapter 462 (which is the original statute from which section 1430 was taken), it was intended to change the inherent character of a leasehold, and while such leasehold savors of realty, it always, as a chattel real, went to the executor. (People ex rel. Higgins v. McAdam, 84 N. Y. 294; JDespard v. Churchill, 53 id. 199.)
    
      G. W. Cotterill, for the appellant.
    
      C. Elliott Mvnor, for plaintiff-respondent.
    
      C. N. Morgan, guardian ad litem and of counsel for infant, defendant Manning, respondent.
   pNGBAHAM, J. :

The action was brought to obtain a judicial construction of the-will and codicils of Elizabeth Broderick, deceased. The judgment, of the court below held that the true intent and meaning of the wilL .gave to tbe plaintiff, as executor, tbe right and power to sell tbe real property owned by tbe deceased, known as No.. 227 East Fifty-second street in tbe city of New York, for the purpose of applying tbe proceeds of such sale to tbe payment of the debts of tbe deceased, and to tbe payment of tbe legacies given by tbe will and •codicils; that it was the intention of tbe deceased to convert said areal estate into personal property, and that tbe direction to sell bad tbe effect of making tbe same personal property for tbe purposes aforesaid. It ivas further held that tbe unexpired term of certain leasehold premises held by tbe testatrix was personal property, and that this appellant bad a lien on said leasehold premises for tbe sum of $399 per annum; and tbe judgment directed tbe plaintiff, in selling said leasehold premises, to pay to said infant appellant a sum sufficient to extinguish such lien.

The infant appellant appeals from all of tbe judgment, except that part which adjudges that tbe defendant Brennan has a lien on tbe leasehold premises. There is no appeal from tbe provisions of tbe judgment bolding that Joseph H. Brennan has such a lien on the leasehold premises, and that question is not before us for review.

The court below held that there was no general power of sale of all tbe real estate given to tbe executor; that tbe legacies were not a charge upon tbe real estate, and that tbe leasehold was personal property. We agree with tbe court below that tbe leasehold is personal property, and as such vested in tbe executor, to be applied in tbe usual course of administration of the estate. We also agree with tbe court below in tbe determination that tbe legacies are not ■a charge upon tbe real estate of tbe testatrix, and that there is no general power of sale contained in tbe will.

The remaining question to be determined is, whether there is a ■special power of sale as to tbe premises No. 227 East Fifty-second street, and an equitable conversion of said premises into personal property. The provision from which the court below inferred this power of sale is the second clause of tbe will. It is there provided:

“ Until tbe sale and conveyance of said premises by my executor as hereinafter provided, I give and devise unto my sister, Catherine Denny, the use of tbe top floor of bouse and premises Number 227 East Fifty-second street, New York City, free of rent.”

There is no provision in tbe will by which tbe executor was authorized to sell and convey this piece of property, and this power of sale must be implied, if at all, from this single provision, coupled with the fact that the will and codicils gave legacies which in the aggregate largely exceed the value of the personal estate of the testatrix.

It seems to us very clear that the court cannot infer a power of sale from this latter fact alone. For if that can be so in every case in which legacies are given in excess of the personal property where the testator leaves real estate, the legacies would 'be a substantial charge upon the real estate. This would be contrary to the settled rule in this State that legacies are not such a charge, unless it expressly appears in the will that it was the intention of the testator to make them a charge upon real estate. We think that the second clause of the will standing alone cannot be said, either expressly or by inference, to give to the executor a power of sale In the first place, the very language used contemplates a further provision in the will as to such sale. The words are “ until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise,” etc. Just what sale or conveyance was in the mind of the draftsman who prepared this clause is not apparent. The conditions upon which the sale was to be made do not appear, but it is perfectly clear that it was a sale to be thereafter provided that was intended, and not that the testatrix intended by the language used in this clause of the will to authorize' a sale. It might be that she intended, if it became necessary, to subsequently authorize her executor by a codicil to sell; but that before such codicil was executed she changed her mind, and that this condition was annexed to the devise to her sister, so that such devise would not prevent the proper execution of any power to sell that she should subsequently wish to give. ’ We cannot tell what authority to sell the testatrix intended to give to her executor, or what conditions she intended to impose upon the exercise of that power. We know that she never did give her executor an express power of sale; and to say that the testatrix intended to give a power of sale by language which limited a devise ■to the time that the property should be sold as afterwards provided, would be to imply such intention from words that mean the exact contrary, would be to say that she intended to grant a power of sale by the clause in question, when by the words used she said she intended thereafter in the instrument to give a power of sale.

We think, therefore, that there was no power of sale contained in the will in question, and that the judgment must be modified by so declaring, and as modified affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.  