
    Joseph Furst, as Executor, etc., of Margaret Furst Eschbach, Deceased, Plaintiff, v. Jacob Bohl, Defendant.
    First Department,
    July 13, 1909.
    Will — power of sale after expiration of lease — power of sale immediate when no lease exists.
    Although a will declared that a daughter of the testatrix held a ten-year lease, of certain real estate and empowered the executors to sell all the real and personal property as soon as said lease expired, the title to the lands vested in the beneficiaries at the death of the testatrix, subject to the power of sale," if in fact the daughter had no lease, as proved by her admission in open court and by the fact that she subsequently leased the lands from. the executors for a short period and thereafter quitclaimed to them any rights acquired under the will. •
    Under the circumstances the executors can give, a marketable title although -the period of the supposed lease has not expired.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of. Civil Procedure.
    
      James H. Goggin, for the plaintiff.
    -—:--:-, for the defendant.
   McLaughlin, J.:

. Margaret Furst Eschbacli died on the 9th of June, 1906, leaving a last will and testament, which was admitted to probate, and letters testamentary issued to the executor therein named, the plaintiff in this action. So much of the will as is necessary to the determination of the question submitted reads as follows : “ First: 1 hereby give, devise and bequeath unto my Executor hereinafter named all my real and personal property of whatever nature and kind and wherever situate of which I may die. possessed for the following usé.and purpose.'

Second. I hereby state that my daughter, Mrs. Virginia Kern, formerly known as Virginia Furst, holds a lease of ten (10) years on my house situate at Ferris Lane, Throggls Neck, New York, at One Hundred and Fifty Dollars ($150) yearly, payable every first of July in advance, said lease to date from July.1st, 1906::

“ Third. I hereby authorize and empower my said executor as soon as the .ten years lease expires to sell, convey and dispose of all. my real and personal estate and property and convert the same into cash, and apply the proceeds thereof as follows!”

At the time of her death the testatrix owned' a piece'of real estate described by metes and bounds in the submission, which the executor, on the 27th of January, 1909,-entered into a written contract to convey to the'defendant for the consideration of $14,000 — $1,000 of which was paid at the execution of the.contract and the balance the defendant agreed to pay when the deed was delivered. At the time fixed for the closing of the transaction the plaintiff tendered to the defendant a deed of the premises in the form required by the Contract, and demanded:the balance of the' purchase price. Defendant refused to accept the deed or to make such payment, on the ground that the plaintiff did not have a good and marketable title, “ for the i’eason that the executor may not exercise the power of sale given him under the will of said deceased until the year 1916 ; ” in other words, the defendant objected to the title because the executor could not exercise the power of sale until after the termination of the lease to the daughter-Regina (called in the will Virginia). But it is agreed that the daughter, at the time of the death of the testatrix, did not have a lease, though for some time prior thereto she had lived on the premises with her mother.

The admission of the will to probate was contested upon various grounds, among others, that it illegally attempted to suspend the power of alienation for a period of ten years — that is, during the term of the lease. On the hearing before the surrogate it was admitted and stated in open court by the attorney for the daughter that she did not have a lease for ten years, and the surrogate held that because the ten-year lease spoken of in the will of the deceased had no valid existence, the direction not to sell until its termination was of no effect. The power of alienation was not suspended and a valid trust - was not created. The title to the property, therefore, vested in the beneficiaries at the date of the death of the testatrix, subject to the exercise of the power of sale by the executor, Blot only this, but it is agreed that following the death of the testatrix the daughter leased from the executor, for a period .of six months,' the premises in question, and that over one year prior to the execution of the contract between plaintiff and defendant she “ released and quit-claimed unto the executor any rights that she might have acquired under said will, and more specifically under the first clause marked £ Second,’ ” which deed was recorded in the office of the register of the county of Blew York, and that the daughter is not now, and was not at the time the contract was executed, in possession.

Upon the facts submitted, I do not see how there can be a question but that good title can be passed. The only objection made is predicated upon a lease which never in fact existed. This is clearly established by the position which the daughter took in the Surrogate’s Court, as well as by her subsequent act in leasing from the executor, and any possible doubt which might theretofore have existed as to the executor’s power to sell was removed when the daughter quitclaimed to him all her right, title and interest.

It follows, therefore, that the plaintiff is entitled to judgment, without costs, to the effect that the title to the premises is good and marketable and the plaintiff, as the executor of the testatrix, has the power to sell the same and that defendant’s refusal"to accept the title was unwarranted, for which reason he should be directed to specifically perform by accepting a deed as called for in the contract and paying the balance of the purchase money. •

Ingraham, Lahghlin, Clarke and Houghton, JJ., concurred.

Judgment ordered for plaintiff as directed in opinion. Settle order on notice.  