
    Warner W. Westervelt, et al., as Executors under the Last Will and Testament of William O’Gorman, Deceased, Plaintiffs, v. Mary Catherine Mahony, et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1907.)
    Wills — Interpretation and construction — Terms defining the nature and quality of estates or interests — Future interests and vesting, possession and enjoyment — Direction to pay, etc., at future time — Where gift is positive and direct.
    Conversion, Equitable — How and in what cases effected — By testamentary direction to sell realty:—‘Discretionary or mandatory character of direction.
    . Where a testator, leaving a widow and eight children, gave by his will his real and personal estate to-his executors, during the life' of his widow, to invest all moneys not needed for use and pay over the income thereof with the net income of his real estate to his widow and, upon her death, directed his executors to divide the residue of his estate real and personal into eight shares and to pay and transfer to each child one of such shares on arriving at the age of twenty-one years, adding, “ to whom I give, devise and bequeath the same to be thereafter held by him, my said son, his heirs and assigns forever; and until my said son shall arrive at the age of twenty-one years, I give, devise and bequeath such portion or share to my said executors, in trust, to pay over the net income thereof to my said son,” but in the case of his daughters providing for a life tenancy while their husbands lived and the remainder to their Children; and where the executors were given a discretionary power to sell or lease the real estate and to remortgage for the purpose of paying off existing mortgages, held, that it was testator’s in-
    • tention to vest the whole of his estate in his eight children living at his death, but postponing the possession and enjoyment of the real estate during the life of his wife, and that an equitable conversion was not intended.
    Action for the construction of a will.
    A. G. Crapsey, for plaintiffs.
    A. L. Martin, Harold Swain, and Jeremiah O’Leary, for defendants.
   Newburger, J.

This action is brought by the executors of the last will and testament of William O’Gorman for a construction of his will and for an accounting.

It appears that William O’Gorman died on June 28, 1903, leaving him surviving a widow and eight children. He made a last will and testament during the year 1899, in which he, after providing for the payment of the debts and funeral expenses and bequeathing to his widow his personal goods and chattels, gave, devised and bequeathed unto the executors thereinafter named, all the rest, residue and remainder of the estate, real and personal, To have and to hold the same, in trust, however, for and during the natural life of my said wife, Julia O’Gorman, for the following uses and purposes, namely:

“ To invest and keep invested all moneys belonging to my estate not required for immediate use in the care and management of my real estate, so that the same shall produce an income, and to pay over the net income of such investment, together with the net income of my real estate to my said wife, Julia O’Gorman, for her own use, care, support and maintenance.

“ Fourth: Upon the death of my said wife, Julia O’Gorman, I direct my said executors or the survivors or survivor of them, to divide the residue and remainder of my estate, real and personal, including investments, into eight equal portions or shares, '* * * one of such equal portions or shares I direct my said executors to pay over and transfer to my son, Maurice J. O’Gorman, when he shall arrive at the age of twenty-one years, to whom I give; devise and bequeath the same to be thereafter held by him, my said son, his heirs and assigns, forever; and until my said son shall arrive at the age of' twenty-one years, I give, devise and bequeath such portion or share to my said executors, in trust, to pay over the net annual income, thereof to my said son, Maurice J. O’Gorman, for his own use, support and maintenance. * * *

“Fifth: I hereby authorize and empower my executors and executrix, hereinafter named, and the survivors and survivor of them, to grant, bargain, sell, assign, convey, transfer and set over any and all of my real estate at such time or times and upon such terms as they shall deem best for the purpose of carrying into effect the provisions of this my will, and to sign, seal, execute and deliver any and all necessary deeds, conveyances, leases, assignments and other instruments in writing therefor.

“And I hereby further authorize and empower my said executrix and executors, the survivors and survivor of them in case any mortgage, which may be an existing lien upon real property belonging to my estate, shall be called in and payment thereof demanded, to remortgage such piece of real property, for the purpose of paying off and discharging such mortgage, and the expense attending the same, and to sign, seal, execute and deliver all necessary and required bonds and mortgages therefor.”

He further, in his will, made the same, provision for the _ other seven children that he made for his son, Maurice J., as is contained in the fourth clause with the exception that, in the cases of several of the married daughters, he provided a life tenancy in said daughters while their husbands were alive and the remainder to their children.

All of the eight children except his daughter, Julia A-., are now in a position to receive their distributive shares of the residuary estate, the husbands' of two of the daughters for whose lives the trust was intended having died before the testator’s widow.

The question submitted by the executor is: Was an equitable conversion effected by the will, and is the real estate in the hands of the executors and trustees to be treated as personal property?

. In Phoenix v. Trustees of Columbia College, 87 App. Div. 438, it was held: “An intention on the part of a testator that his real estate shall be converted into personalty must, in order to be operative, appear plainly, distinctly and unequivocally. Such intention may be manifested: First, by a positive direction to the executors or trustees to make the conversion; second, the intention may be ascertained from the necessity of a sale in order to carry out the general scheme of the testator; third, the property may be deemed to be equitably converted when the purpose of the testator would fail without such conversion.”

In Scholle v. Scholle, 113 N. Y. 270, it was held: “A power or authority to sell is given, but unless the exercise of that power is rendered necessary and essential by the scope of the will and its declared purposes, the authority is to be deemed discretionary, to be exercised or not, as the judgment of the executrix may dictate, and so an equitable conversion will not be decreed, and where a power of sale is given without explicit and imperative direction for its exercise, and the intention of the testator in the disposition of his estate can he carried out, although no conversion is adjudged, the land will pass as such and not be changed into personalty.” Chamberlain v. Taylor, 105 N. Y. 194; see also Matter of Tienken, 131 id. 400; Matter of Tatum, 169 id. 514.

It is apparent, in view of these decisions and from a reading of the will, that it was the intention of the testator to vest the whole of his estate in his eight children living at his death, but postponing the possession and enjoyment of the real estate during the life of the wife so as to secure for her an annual income for her support. ISTo equitable conversion was either intended or effected by the provisions of the will. The direction to the executors to divide the residue and remainder of the estate, real and personal, and not a division of the proceeds derived from a sale of real property, clearly expresses the intention of the testator, The whole scheme and language of the will make it plain that the testator contemplated that his real estate should he preserved and divided by the executors and trustees among his eight children.

Judgment should be entered decreeing that no equitable conversion was effected by the will of William O’Gorman, deceased, and that the executors proceed to carry out the directions of the will and to file their accounts within thirty days, such accounts to be submitted to a referee if objections are filed thereto.

I have passed upon the findings proposed. Let findings embodying those that I have allowed and a decree in accordance therewith be submitted upon notice. As to the question of costs and allowance raised by all the attorneys, that can be passed upon on the entry of the final decree.

Judgment accordingly.  