
    Margaret D. Clifford, as Administratrix, and Emanuel G. Bullard, as Administrator with the Will Annexed of Jeremiah Cornwell, Deceased, Plaintiffs, v. Mart C. Morrell, Defendant.
    
      Will—a mandatory power of sale survives the executor’s death — it may be exercised by administrators with the will annexed—not affected by delay—failure to make an appraisal required by the will.
    
    The will of a testator, who died in 1868, after directing an appraisal of his estate by his executor and by some other disinterested person, devised two-thirds of his estate so appraised to his wife absolutely, and one-third to his son for life, with remainder to his issue, and directed his executor to partition so much of his estate as might be equally partitioned, to sell the remainder and to divide the proceeds.
    
      Held, that the power of sale given to the executor with reference to the lands which were incapable of being partitioned by him was imperative; that consequently it survived the death of the executor (which occurred prior to 1895) and might properly be exercised by administrators with the will annexed, appointed in January, 1897;
    That, although the testator contemplated that the appraisal directed by the will should precede any partition or sale, such appraisal was not a prerequisite to the exercise of the power.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      F. F. Bullard, for the plaintiffs.
    
      Robert P. Orr, for the defendant.
   Willard Bartlett, J.:

The plaintiffs, as administrators with the will annexed of Jeremiah Cornwell, deceased, have entered into a written contract with the defendant, by which they have agreed to sell and convey to her one undivided ninth of certain parcels of land at Far Rockaway, in the county of Queens, for the sum of sixty dollars. Those parcels belonged to Jeremiah Cornwell at the time of his death in 1S68. Doubts have arisen as to the power of the administrators to convey a marketable title to the property, under the terms of Mr. Corn-well’s will, and it is to resolve those doubts that this controversy has been submitted.

By liis will Jeremiah Cornwell directed the executor named therein, in conjunction with some other disinterested person chosen by him, to appraise at its true and fair value all the testator’s estate, both real and personal, and declared that the value thus ascertained should be binding and conclusive upon all parties interested in his will. Of all his said estate so appraised and valued,” less a deduction not material here to be considered, he devised and bequeathed two equal third parts to his wife absolutely, and the remaining onetliird to his son for life, and, upon the death of his said son, to his son’s child or children, and to the issue of such child or children.

The 5th article of the will is in these words:

“ I hereby direct that such of my real estate as can be equally partitioned between the devisees in this my will named, regal’d being had to the value thereof, shall be so partitioned by my said executor, and such part of my real estate as cannot be equally partitioned I hereby direct to be sold, and the proceeds of such sale to be divided, and I hereby give unto my said executor full authority to make, execute and deliver all necessary deeds and conveyances in the law, for the purposes of such partition or sale.”

The widow survived until 1882, retaining the ownership of the real estate which she took under her husband’s will, and by her will she devised an undivided half thereof in fee to each of her two daughters. One of these daughters has since died intestate, leaving three children.

The son of Jeremiah Cornwell is still living, at the age of sixty-seven, and has seven children, five of whom are infants.

The plaintiffs, as administrators with the will annexed, have succeeded the executor, who qualified under the will.

The objection that they cannot exercise the power of sale is not well taken. It is true that where a discretionary power to sell is conferred upon executors that power cannot be exercised by an administrator with the will annexed. (Greenland v. Waddell, 116 N. Y. 234, 240.) That rule, however, does not apply where the power of sale is imperative, and its exercise involves no element of personal discretion. (Mott v. Ackerman, 92 N. Y. 539, 553, 554.) Such is the case here. The 5th article of Jeremiah Cornwell’s will directs an equal partition of such of the testator’s real estate as can be partitioned by his executor. As to such portion as cannot be so partitioned it directs a sale and a division of the proceeds. This direction is clear and positive with reference to the real estate which should be incapable of partition by the executor. It is in no sense a discretionary power of sale. The testator’s interest in the beach lots at Far Rockaway, forming the subject of this controversy, plainly falls within the scope and operation of the power. The testator was the owner, not of the entire property, but only of one undivided ninth part thereof. It is manifest, therefore, that no partition of this undivided interest, which the testator owned in common with outside parties, could possibly be made by his executor among the devisees under the will. Hence, the power of sale made it the duty of the executor to sell such interest, and this duty has devolved upon the administrators with the will annexed.

The direction for an appraisal contained in the earlier part of the will -was not carried out by the executor, who died sometime prior to 1895. "While the testator undoubtedly contemplated and desired that such appraisal should precede any partition or sale of the real estate, it does not seem to me to be a positive prerequisite to the exercise of the power, or to be so connected therewith as to make the power discretionary, and, hence, one which cannot be executed by the administrators with the will annexed.

Flor is it a valid objection to the exercise of the power that the will creating it was admitted to probate twenty-nine years ago. The power still remains unexecuted, and the obligation to execute it 'still rests upon those charged with the administration of the estate, the devisees having taken such interest in the testator’s real property as they derived under the will subject to the execution of the power. The administrators were appointed only in January of the present year, and have acted with reasonable promptitude, as they made their contract to sell to the defendant in June.

I find nothing in .the agreed statement of facts to justify the defendant in refusing to take title, and think the plaintiffs should have judgment directing the specific performance of the contract.

• All concurred.

Judgment for plaintiffs upon agreed statement of facts.  