
    George B. Abbott, Public Administrator in Kings County, as Administrator, with Will Annexed, of Augustine Baker, Deceased, App’lt, v. John F. James, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    Specific performance—When court will not decide a case because of lack of evidence.
    . In an action to compel the defendant to complete his purchase of certain real estate sold to him hy plaintiff, the question in controversy was, whether the power of sale given hy a certain will failed as to so much of the real estate as could not pass to three certain charitable societies named as legatees in the will. By the said will the testator gave to his w fe dur-' ing her life, or until she remarried, the use of all his property, real and personal. He had no children, and his only heirs at law were nephews and nieces.. Upon the death or remarriage of his wife, lie gave the whole . of his property to the three societies named, and then provided that if, at the date of the distribution, any of his property should consist of real estate, it should be sold and converted into money, and the proceeds divided among the societies. The heirs at law were not made parties to the litigation, and it did not appear what portion of the property con isted of real estate The court refused to decide the matter, Holding that_ the question upon which the validity of the purchaser’s title depends is so doubtful that it ought not to decide and compel the acceptance of the deed in the absence of and without hearing the heirs at law whose rights depended upon the same question; that as the question involved was doubtful, the purchaser should not be exposed to the possible risk of future litigation with the heirs at law.
    Appeal from a judgment of the supreme court, general term, second department, giving judgment to the defendant.
    The will in question will be found in the report of the general term opinion in 14 N. Y. State Rep., 597.
    
      W. I. Washburn, for app’lt; W. N. JDyJcman, for resp’t.
    
      
       See 14 N. Y. State Rep., 597.
    
   Finch, J.

The majority of the court are of opinion that the question upon which the validity of the purchaser’s title depends is so doubtful that we ought not to decide and compel an acceptance of the deed, in the absence of and without hearing the heirs at law whose rights depend upon the same question. We have acted upon that basis many times; generally, it is true, where the doubt arose upon the facts, but sometimes, I think, where the question was one. of law. Jordan v. Poillon, 77 N. Y., 518; Fleming v. Burnham, 100 id., 8.

The ultimate inquiry here presented is, whether the power of sale given by the will failed as to so much of the real estate as could not pass to the three charitable, societies named as legatees in the will. The testator gave to his wife during her life, or until her remarriage, the use of all his property, real and personal. He had no children, and his only heirs at law were nephews and nieces. Upon the death or remarriage of his wife he gave the whole of his property to the three societies named, and then provided that if, át the date of the distribution, any of his property should consist of real estate, that should be sold and converted into money and the proceeds divided among the societies. It is conceded that by force of chapter 360 of the Laws of 1860 the testator could not give to the charitable societies more than one-half of his property, so that the half which they could not take was undisposed of by the will.

Two opposite theories have been argued as solutions of the difficulty. The courts below have held that the absolute title to one-half of the estate vested in the testator’s heirs at law and the purpose of the power having failed as to that half the direction to sell fell to the same extent, and the title of the heirs became freed from its incumbrance. This view assumes that the power of sale was given solely for convenience of division among the three societies. But the appellants contend that the failure of the attempted legacies beyond one-half of the estate, does not affect or destroy the power of sale; that such power was both absolute, imperative and independent; that it was supported by the peremptory mandate of the testator, and not by some ulterior purpose to which it was accessory or a necessary or convenient incident; and that even if its purpose be declared to have been to facilitate division among the societies, that purpose has not wholly failed, and we cannot say that the direction would have been withheld if the testator had known that 'one-half of his property would not pass under his will.

Numerous authorities are cited on both sides, and many 'considerations advanced not necessary to be repeated. While upon the inquiry involved I have perhaps formed some decided opinion, I am obliged to admit that the question is doubtful and debatable, and justifies the differences of opinion which have arisen among us. Those differences have not been wholly founded upon the question of law, but have rested somewhat‘upon the uncertain and undisclosed character of the facts.

If at the death of the testator only one-quarter of his groperty was real estate,.and the value of that could be xed by proof or by agreement, the share going to the societies would be easily ascertained and payable out of the personal estate without need of a resort to the land, and no purpose or necessity would exist for the power of sale. Possibly, in that event, the heirs would have a right to hold their share in land by the exercise of an option, evén if the power of sale was not otherwise extinguished. But if, at testator’s death, the situation was different, and three-quarters of his estate was realty, a sale of the land would be needed for payment to and division among the charitable societies, and the argument in support of the power of sale would be much stronger. What the facts are we do not know, and they might easily prove to be such as at least to affect the decision if not to dictate it. So that even if, in a case dependent upon a bare question of law, we ought to' decide it, and adjudge the title tendered to be good or bad, we have not before us a case wholly independent of unknown facts, and certain not to be affected by them.

In such an emergency we must remember that if we force this title upon the purchaser, he may have to confront the heirs at law in a future litigation. They are not before us, and will not be bound by our decision. They will have a right to be heard and since the question is doubtful and quite evenly poised, we think we ought not to expose the • purchaser to the possible risks of the situation. We have, therefore, briefly stated the question sufficiently to disclose its general character, and without any argument upon it which would be improper in view of our conclusion.

For the reason given, and without deciding the question involved, we think the judgment should be affirmed, with costs.

All concur, except Earl, J., not voting.  