
    James J. Coogan, App’lt, v. John H. Ockershausen, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed January 3, 1888.)
    
    1. Wills—Construction oe—When payment oe debts charged on testator’s REAL PROPERTY.
    The will of a testator directed the payment of all his just debts and funeral expenses as soon as practicable after his decease. Held, that the payment of the testator’s debts was thereby made a charge upon his real estate, and for that purpose the executor had an implied power of sale, and in the exercis'e of that power might convey good title to the real property of the testator.
    3. Same—Rights oe creditors over real property—Code Crv. Pro., §§ 3749-3759..
    The creditors in such a case, under the provisions of sections 2749-3759, have no claim on the land except through an implied charge on the land, and a purchaser through the executor is under no obligation to see to the proper disposition of the purchase money; therefore the purchaser may not (where title is offered under such a power) object on the ground that the land will remain subject to the rights of the creditors, within three years, etc., when it in no way appears that the execution of such power is impracticable.
    3. Same—Appeal—Exceptions necessary to insure review.
    It seems doubtful whether the case presents any question for review on appeal from a judgment which is entered in accordance with the findings of fact and conclusions of law where there are no exceplions to either.
    Appeal from a judgment entered at special term on a rial by the court without a jury.
    This action was brought to recover the sum of $250, paid by the plaintiff to the defendant under a contract made with the latter as the executor of one Taylor, deceased, for the sale of certain real property of the testator, and for the sum of fifty dollars counsel fees. It was claimed by the plaintiff that the defendant could not give a good title to the land in question, as, at the time fixed for the completion of the contract,- three years had not elapsed since the death of Taylor, and there were claims against his estate unsettled.
    Other facts are stated in the opinion.
    The following is the opinion rendered at special term:
    Sedgwick, Ch. J.—The testator directed in his will: “I direct all my just debts and funeral expenses to be paid as soon as practicable after my decease.” All “the rest, residue and remainder of his estate ” be devised to his executor, in trust, etc.
    The will, by the legal effect of these provisions, made the payment of the debts a charge upon the land. White v. Kane, 51 Super. Ct., 295, and the numerous earlier cases. It is to be kept in mind, however, that the charge was not express, but implied.
    The executor of the will, who was the devisee in trust, had an implied power of sale for the purpose of paying the debts. Story Eq. Jurisp., § 1004, b and note 3.
    The specific objection to the power of the executor to convey a, title is, that the land will remain subject to the right of the creditors within three years, etc., to apply to the surrogate for a decree that the land be sold for the purpose of paying debts which the personal estate was not sufficient to discharge. This right of the creditor is claimed to be established by section 2749, et seg., of the Code of Civil Procedure. I assume that if in the present case the creditors might have a right to proceed under the statute, the objection made to the title would be good. The exception contained in section 2749, would not prevent an application being competently made to the surrogate. The exception is of real estate expressly charged with the payment of debts, etc. The present case concerns an implied charge. But before the surrogate can make a decree of sale, he must find (§ 3759) that the property “ is not subject to a valid power of sale for the payment of ” the debts; with a limitation that will be noticed. The statute does not refer to an express power. If there be an actual and valid, although i. died, power, the surrogate cannot make the decree.
    I am therefore of the opinion that the creditors have ^ claims upon the land, and will have none excepting thro, the implied charge and power of sale that have been sp* fled. The plaintiff is under no obligation to see to w proper disposition of the purchase-money.
    
      Hyde v. Tanner, 1 Barb., 75, differs from the present ca, because it had regard to the right of executors, etc., or c creditors, through them, to apply to the surrogate for leavt to sell under the Revised Statutes. Those statutes permitted the sale of land without regard to the fact that the executor had power of sale, although if there were an express charge the land could not be sold.
    It has been shown that under the Code, if there be a valid power of sale, the land cannot be sold, with the limitation that will now be examined. Section 3759 declares that if there be a valid power of sale, the surrogate may make the decree, “if it is not practicable to execute the power” and “the creditor has effectually relinquished the same.” These words do not include the present case, for there is no objection made that the power, if it exist, cannot be practically executed.
    I think, further, that the powers of sale contained in the devises in trust were valid.
    I have said nothing as to the personal property being the primary fund for the payment of debts, because the plaintiff places his objection to the title on the ground substantially that there appears to be a deficiency of personal property to pay debts.
    
      Cardozo & Newcombe, for app’lt; Thompson & Koss, for resp’t.
   Per Curiam.

The trial judge found as a "fact, that the defendant was ready and willing, and had full power and authority, as executor of George G. Taylor, deceased, to convey the property contracted to be sold, to the plaintiff, at the time, and in the manner provided in the contract of sale, and that the plaintiff failed and refused to fulfill the agreement on his part, or to receive or accept a conveyance of said premises from the defendant, as provided by said agreement. And, as a conclusion of law, that the defendant is entitled to judgment against the plaintiff, dismissing the complaint with costs.

The will of the testator is not included in the record, and there are no exceptions to the findings of fact, nor to the conclusions of law.

As the judgment entered was in accordance with the findings of fact and conclusions of law, it is doubtful, under the authorities, whether the case presents any question for review. See Dainese v. Allen (36 Supr. Ct., 104), and cases cited. The supreme court appears to have held that the court has power to reverse, without exceptions, for a manifest error of law, ascertainable from the findings actually made. Mandeville v. Marvin, 30 Hun, 288.

On the question presented, however, we agree with the chief judge, that the will made the payment of the testator’s debts a charge upon his real estate, and to carry out the provisions of the will directing payment of the testator’s debts, the executor of the will had an implied power of sale, for the purpose of paying the debts, and in the exercise of that power to convey a good title to the property.

The judgment is, therefore, affirmed on the opinion of the chief judge at special term, with costs..  