
    Stewart Dillenbeck, Respondent, v. William B. Dillenbeck and Others, Appellants, Impleaded with Elmer Dillenbeck and Others, Defendants.
    Third Department,
    November 10, 1909.
    Will — suspension of power of alienation.
    A provision in a will whereby a testatrix directed her executors to sell certain real estate “within three years from and after the April first following my decease ” does not suspend the power of alienation, as the executors are at liberty to make an immediate sale of the property.
    Appeal by the defendants, William B. Dillenbeok and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 6th day of March, 1909, upon the decision of the court rendered after a trial at the Fulton Special Term.
    Action for partition.
    
      Clarence W. Smith, for the appellants.
    
      M. D. Murray, for the respondent.
   Cochrane, J.:

This action involves the validity of the following provision in the last will and testament of Catherine S. Dillenbeck, deceased, viz.:

“ I order and direct my said executors, or the survivor of them or the one who shall act as his or their legal successors in office, to sell and convey my said farm and real property for the best price they can obtain therefor, within three years from and after the April first following my decease.”

The said clause in the will has been declared invalid because it suspends the power of alienation of the real estate until the April following the death of the testatrix, and partition of such real estate has been adjudged herein among the heirs of the deceased as if she had died intestate.

The argument is that the will contemplates an interval of time between the death of the testatrix and the following April not measured by lives during which the property cannot be sold. I do not think the will should receive that construction. The intent of the testatrix was to fix a limitation of time within which the property should be sold. It was made the duty of her executors to sell the same at any time either before or after the April following her decease, but not later than three years after such April. It may be possible to give to the clause in question the meaning which plaintiff claims it should have. But it certainly does not necessarily have that meaning, and the rule applies that in case of doubt or ambiguity such a construction should be employed if possible as will sustain rather than destroy the instrument. There is nothing in the case disclosing any reason why the testatrix should desire to postpone the sale for any period of time, and hence we should conclude that there was no suspension of the power of alienation, but that the executors were at liberty to make immediate sale of the property.

The interlocutory judgment must be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred.

Interlocutory judgment reversed and new trial granted, with costs to appellants to abide event.  