
    DEAGAN et al. v. VON GLAHN et al.
    (Supreme Court, General Term, First Department.
    January 12, 1894.)
    1. - Executors and Administrators—Failure to Collect Assets.
    Where plaintiff collected money belonging to the estate of a decedent, and refused to pay it over to defendant, who, was temporary administrator thereof, he cannot afterwards, as administrator of the estate, require defendant to account therefor.
    2. Same—Accounting—Counsel Fees.
    Refusal to allow counsel fees is not error where no request was made to find that the amount claimed was a reasonable charge, though evidence was given in respect to it
    8. Wills—Perpetuities.
    A devise to the executor, his successor or substitute, with a direction to sell the property devised at some convenient day and place during the spring months of 1891, (the will having been made in September, 1890,) is not in violation of the statute against perpetuities.
    4. Same—Fee Simple.
    A devise to C. for life, with full power to devise, but not power to grant or convey, and, if he shall die intestate, then the remainder over to his heirs, vests a fee simple in C.; 1 Rev. St. p. 733, § 84, providing that, where a general power to devise shall be given to a tenant for life, he shall be deemed to possess an absolute power of disposition.
    Appeal from judgment on report of referee.
    Action by Thomas J. Beagan and another, individually and as administrators with the will annexed of Patrick Wade, deceased, against John Von Glahn, as temporary administrator of the estate of Patrick Wade, deceased, and others, to construe the will of said decedent, and for an . account of the temporary administrator and executors of the will. From a judgment entered thereon defendants John Von Glahn and Charles Wade appeal.
    Reversed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    J. F. C. Blackhurst, for appellant Charles Wade.
    Abram Kling, (Charles E. O’Connor, of counsel,) for appellant John Von Glahn.
    Booraem, Hamilton & Beckett, (Louis V. Booraem, of counsel,) for respondents Thomas J. Deagan and Cathrina F. Hyland.
    Townsend & Mahan, for respondents Mary Boyd and James Boyd. Jesse Grant Roe, for respondents John Hyland and others.
    A. B. Cruikshank, for respondent Mary Wade.
   VAN BRUNT, P. J.

The appeal herein is from so much of the judgment entered herein as construes certain parts of the will of the testator, Patrick Wade, and disallows certain items in the account of the temporary administrator. This action was brought for a construction Of the will of said Wade, and for the accounting of the temporary administrator and the executor and executrix .of said will. The issues in this action having been referred to a referee, after a trial he charged the temporary administrator with certain sums which the plaintiff.Hyland had collected and refused to pay over to the temporary administrator, and he is by this decree directed to pay these sums to the plaintiffs. In other words, one of the plaintiffs has retained money belonging to the estate, which she should have paid over to the temporary administrator; and, because she did not do so, he is, by this judgment, directed to pay said sums to her. The mere statement of this judgment seems to show its want of equity. In law the plaintiff Hyland is chargeable with these moneys collected by her, and is presumed to have them in hand, and cannot now claim what she has already got from the temporary administrator.

As to the item of $250, although evidence was given in respect to this charge, no request was made to the referee to find that it was a reasonable charge, and consequently no foundation was laid for a review of his ruling. ■ The evidence in this case is that this amount was to be in full of all claims for service in this action, and, as the court allowed $225 to the counsel for the temporary administrator, which was, we think, a very liberal allowance, it would seem that the same was substantially allowed, and the temporary administrator has no reason to complain.

The only other questions presented are those relating to the construction of the will of Patrick Wade. It is claimed upon this appeal that the third clause of the will, relating to No. 3 Franklin street, is in contravention of the statute against perpetuities. The clause in question is as follows:

“Thirdly. I give, devise, and bequeath to my executor hereinafter named, his successor or substitute, my lot known as ‘Number Three (3) Franklin Street,’ in the city of New York, with the two houses thereon erected, and direct him to sell the same at public auction at the city of New York, to the highest bidder, at some convenient day and place during'the spring months of 1891, and to make, execute, and deliver good and sufficient deed or deeds of conveyance for the same to the purchaser at such sale.”

—And then the testator disposes of the proceeds to certain legatees. By this provision the testator created one of the express trusts provided for by the Revised Statutes, (1 Rev. St. p. 728, § 55,) viz. to sell lands for the benefit of legatees; and the trust was not a personal one to the executor, because the devise is to the executor named in the will, his successor or substitute, who were to exercise, the power. We do not think that the statute against perpetuities was violated. There was no intention to suspend the right of the executor to sell. It seems to have been the intention of the testator to secure a speedy sale. The will was executed in September, 1890, and the testator died in October of the same year, and it seems to have been made in contemplation of death. In the ordinary course of administration the executor could have refrained from selling for nearly a year after decease, and to avoid that delay the testator gave the direction to sell in the spring months of 1891. These words were therefore intended to be merely directory, and not mandatory, and in no way limited the estate devised. In no case has a devise ever been held void except where an intention is expressed to suspend the power of alienation so that the ordinary method of administration could not be carried out. In the case at, bar the devise was absolute,' and the direction to sell was not a limitation of the devise, but a provision for more speedy administration than the law required.

In respect to the devise of No. 228 Mott street, it is claimed that the referee erred in holding that Charles Wade took only a life interest therein, with remainder to his heirs. The provision of the will in respect to No. 228 Mott street is as follows:

“Fourthly. I give, devise, and bequeath my lot number two hundred and twenty-eight (228) Mott street, in the city of New York, free and-clear of all incumbrances, with the two houses thereon erected, to my son Charles Wade, for the term of his natural life, with full power to devise, but with no power to grant or convey, the same, and, if he shall die intestate, then, with remainder over, to his heirs; and I desire and direct my executor hereinafter named to collect and receive the rents and profits of said number 228 Mott street until my said son shall arrive at the age of twenty-one years, and, after paying the taxes, assessments, and the expenses of necessary repairs on the said house, then to apply the balance of said income primarily to the support, education, and maintenance of my said son, and, if there shall be any surplus, to add the same yearly to the other moneys invested for him under the provisions of this will; and when he shall arrive at the age of twenty-one years to pay to him the whole of such accumulated sums, with the interest.”

The devise is to Charles Wade for the term of his natural life, with full power to devise, but with no power to grant or convey, the same, and, if he should die intestate, then with remainder over to his heirs. In other words, if he died intestate, his heirs were to take under the statute of descents. Section 84, at page 733, 1 Rev. St., provides that:

“Where a general and beneficial power to devise the inheritance, shall he given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition, within the meaning and subject to the provisions of the three last preceding sections.”

—That is, the tenant for life may sell or devise the inheritance, or creditors may cause it to be sold in satisfaction of debts; and, if neither of these things are done, upon the death of the tenant any future estates limited therein attach. So that, even if any future estates are limited upon the inheritance in question (which may, well be a matter of doubt) pursuant to the provisions of the statute quoted, the tenant has an absolute power of disposition. The judgment should therefore be reversed as to the items of $57.68, $6, and $56.37, charged against the temporary administrator, and also as to the findings in respect to No. 228 Mott street, with costs to the plaintiff and to each of the guardians ad litem, to be paid out of the estate, and without costs to the temporary administrator. All concur.  