
    Robert E. Farley and Clara F. Hitchcock, as Executors and Trustees, etc., Appellants, v. Henrietta T. Secor and Others, Respondents.
    Second Department,
    April 9, 1915.
    ITendor and purchaser — contract for sale of land. construed—exercise by executor and trustee of purchaser of option to purchase — specific performance — damages in lieu of performance—trust — suspension of power of alienation.
    S. and H. made an agreement whereby the former was enabled within five years to call for"a deed of land at a price not less than $1,500 per acre, which deed might run to the party of the second part or any other person he might designate. The contract contemplated (1) the purchase by H. personally, in which ease he was enabled to give back a mortgage of $80,000; (3) a sale by H. to a third person, in which ease he should divide all sums above $100,000; (3) a sale by S. for not less than $1,700 per acre, in which case he should divide all profit over $100,000 a,nd return to H. the $3,000 which it was agreed that he should pay yearly to S. After three years H. died and his estate and S. modified the existing contract in certain particulars, but otherwise expressly confirmed it. This was done twice afterwards during S.’s life, who not only recognized H.’s estate but increased the price that should be paid each year. In two of these renewals S. acknowledged that H.’s estate had elected to purchase, but the election was deferred by the new agreement. Thereafter the executors and trustees of H. gave due notice that they elected to exercise the option to purchase, but S.’s representatives gave no assent, and claimed that they were not bound to accept the $80,000 purchase-money mortgage provided in the original contract.
    In a suit by the executors and trustees of H. for specific performance held, that a judgment dismissing the complaint should be reversed and a new trial granted;
    That the parties intended that H.’s estate should have the same status that the contract gave him; that, therefore, his estate had a right to tender the purchase-money mortgage;
    That after the exercise of the option an interest in land arose which vested in H.’s trustees because the contract fell into his residuary estate under the will.
    There seems to be no reason for refusing specific performance, but should such obstacle arise, the plaintiffs may recover damages for the difference in value between the stipulated purchase price and the value of the land. A direction to pay the income from a trust estate to the widow “for a term of five years from the date of my decease ” does not unlawfully suspend the power of alienation.
    Appeal by the plaintiffs, Robert E. Farley and another, as executors and trustees, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 24th day of September, 1914, dismissing their complaint upon the decision of the court after a trial at the Westchester Special Term.
    
      William L. Rumsey, for the appellants.
    
      R. E. Digney, for the respondents Henrietta F. Secor and The Farmers Loan and Trust Company, as executor, etc.
    
      F. M. Thompson, for the infant respondents.
   Thomas, J.:

Hitchcock and Secor made an agreement whereby, among other things, the former was enabled within five years to call for a deed of certain land at “a price not less than at the rate of Fifteen hundred dollars * * * per acre, which deed may run to the party of the second part, or any other person he shall designate.” The contract contemplated (1) a purchase by Hitchcock personally, in which case he was enabled to give back a mortgage of $80,000; (2) a sale by Hitchcock to a third person, in which case he should divide all sums above $100,000; (3) a sale by Secor for not less than $1,100 per acre, in which case he should divide all profit over $100,000 and return to Hitchcock the $3,000, which it was agreed that he should pay yearly to Secor. The price at which Hitchcock could buy or sell to another was stated 'at not less than the rate of $1,500 per acre, because if he got more than $100,000 from another person he must divide it, but the minimum price was fixed for his own purchase. There is no uncertainty as to the price Hitchcock was obliged to pay. After some three years Hitchcock died, and Secor and the estate of Hitchcock, who left a will and codicil appointing executors and trustees, modified the existing contract in certain particulars, but otherwise expressly confirmed it. The same thing happened twice afterwards during Secor’s life, who not only recognized Hitchcock’s estate through at least one of his executors and trustees, but increased the price that should be paid each year, which was paid. In two of these renewals Secor acknowledged that the Hitchcock estate had elected to purchase, but the election was deferred by the new arrangement. After Secor’s death his executor insisted that the'estate of Hitchcock should refund to it one-half the taxes which the estate of Hitchcock had agreed to pay, and actually received the same. The executors and trustees of Hitchcock gave due notice that they elected to exercise the option, but Secor’s executor gave no assent, and upon insistence by plaintiff it stated that it had referred the matter to its lawyer. Interviews with the lawyer and a direct representative of Secor’s executor and trustee show that the latter took the position that the Hitchcock estate was not entitled to give back the $80,000 purchase-money mortgage provided in the original contract and continued in three contracts after Hitchcock’s death. Then this action was brought. If it was not intended that Hitchcock’s estate should have the same rights as to the $80,000 mortgage as Hitchcock himself, why was it confirmed in each of the contracts after Hitchcock’s death ? Hitchcock died while the first contract had two years to run. By the respondents’ contention the Hitchcock estate upon his death was reduced to purchase for cash under the same contract that enabled Hitchcock to give the mortgage. The contracts show the parties intended that Hitchcock’s estate should have the same status that the contract gave him. It was not expected that Hitchcock dead could personally buy the land save through his representatives and trustees. It is also considered that the plaintiffs were authorized to exercise the option. It was an asset of the estate, and it was their duty to preserve it if it seemed to them valuable. Before the option was exercised the estate had no interest in the land, but a cause of action would accrue for a breach of the agreement, and the plaintiffs owned the option and a cause of action for its breach. They properly exercised the option, whereupon an interest in land arose. That interest vested in them because it fell into the residuary estate under Hitchcock’s will, of which plaintiffs are the trustees. Hence, they are the proper persons to bring an action on what is now a contract for the sale of land. It is urged that the trust is void. Passing the immorality of taking renewals of the contract and money through negotiation with the trustees and then disclaiming their ability, it appears that the power of alienation is not unduly suspended. The direction is to pay the income to the widow “ for a term of five years from the date of my decease.” It could not he paid to her if she were not alive. Hence, it was intended that the term should fall within her life. If she died within the time, the trust as to payment of income fell not only because the term could not extend beyond her life, but because there would be no beneficiary of the income. I assume that it will not be contended that the failure of the precedent estate would destroy the remainder. Bor was the time fixed for the enjoyment of the remainder too remote. As it was limited for the time of enjoyment on a term that was dependent on a life in being it would in any case take effect when the fife ended. That the testator intended the division to fall within the life of the widow is evidenced in some degree by the direction that one-half of the land is given to her in remainder. The absolute ‘ ‘ power of alienation * * * is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed.” (Robert v. Corning, 89 N. Y. 225, 235.) The life tenant and the remaindermen could convey such fee, because by the consent in writing the fee' could be vested in the remaindermen at any time. The evidence shows that the plaintiffs duly elected, and that the executors not only failed to consent to performance, but that they denied the right of the plaintiffs to give back the purchase-money mortgages. Their action is tantamount to refusal, and in such case the plaintiffs were not required to make strict tender of performance. (Oppenheimer v. Knepper Realty Co., 50 Misc. Rep. 186, 187.) The widow’s position may be inferred only from her answer in the action. But if she refuse to release her dower the purchase price can be abated in accordance with its value. (Bostwick v. Beach, 103 N. Y. 414.) There seems to be no insurmountable reason for refusing specific performance. But should such obstacle arise the plaintiffs can recover damages for the difference in value between the stipulated purchase price and the value of the land. The damages are not the sums that have been paid under the option, as such payments were, made, not as a part of the purchase price or for the purpose of applying thereon, but rather to enable Hitchcock or his estate to buy at the agreed price per acre. What the damages would be if the action were brought at law for a breach of the option is not now considered. But where damages are given in lieu of specific performance on account of the willful refusal of the vendor to convey the rule is as above stated.

The judgment should be reversed, with costs to the appellants to abide the final award of costs, and a new trial granted, which will enable the trial court to conform its decision to the views herein expressed upon the facts as they now appear, and to make such provision for closing the title and making adjustments thereon as the circumstances shall demand.

Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs. Order to be settled before Mr. Justice Thomas.  