
    Van Norden Trust Company, as Executor of and Trustee under the Last Will and Testament of Henry A. Smith, Deceased, Respondent, v. John J. O’Donohue and Others, Appellants, Impleaded with Edward F. Murphy and Others, Defendants.
    First Department,
    November 22, 1907.
    Partition — will construed — devise not creating trust — equitable conversion — election.
    Action for partition.
    A testator left to bis sister the net annual income of his entire estate, real and personal, after the payment of an annuity to his brother H. There was no clause vesting the executors with the estate for the purpose of paying the income to the sister for life, but it was provided that they were to take charge of the whole estate during her lifetime. It was also provided that the executors should continue to pay the annuity to H. if he survived the sister, and that a sum might be invested for that purpose to become part of the residuary estate on the death of the annuitant, but the latter died before the sister. The executors were authorized to sell the whole or any part Of the estate in their discretion, except certain lands the subject of the action for partition, which were not to be sold during the lifetime of the sister. On her death the remainder was devised to certain persons named, with a power of sale in the executors for the purpose of making the division among the remaindermen. i
    
      Held, that the will did not create an .express trust and that title did not vest in the executors;
    That on the death of the life tenant the remaindermen acquired a right to possession subject to the discretionary power of Sale in the executors;
    That the remaindermen were entitled to convey their interests, subject to the contingencies provided in the will, prior to the death of the life tenant, and on the happening of that event the grantee had an immediate right to possession subject to the right of the executors to sell the lands for the purpose of distributing the proceeds, and one acquiring title through such grantee was entitled to partition;
    That even though the power of sale in the executors worked an equitable conversion of the realty, the remaindermen were entitled to elect to take the lands rather than the proceeds thereof and upon such election, evinced by a conveyance of their remainders, the power of sale became useless;
    
    That such right of election obtained although exercised only as to a portion of the estate;
    That a lease of the premises by the executors was good only during the life of the life tenant and the fact that the lessee is in possession after her death does not establish that the remaindermen are not in possession for the purposes of partition.
    Appeal by the defendants, John J. O’Donohue 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 New York on the 20th day of March, 1907,- upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said ' defendants’ demurrer to the second amended-complaint herein.
    
      H. Arlington, for the appellants.
    
      Edward W. S. Johnston, for the'respondent.
   Lambert, J.:

The principal question involved in this appeal relates to the construction of the will of one Hugh Smith, who died on the 16th day of July, 1890, leaving a last will and testament, bearing date of April 10, 1884, the same having been duly probated in August, 1890. The deceased at the time of his death was the owner of the Murray Hill Hotel and property at Avenue B,” and this action for partition relates solely to these properties. The defendants John J. O’Donohue, Mary L. 'Kelly and Thomas J. O’Donohue, Jr., oppose the partitioning of the property, the various questions being raised by demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The theory of the demurring defendants is that under the will of Hugh Smith, deceased, this property vested in trustees, and that the com-. plaint does not show tjiat the trustees were ever divested of title, Or that the plaintiffs and defendants áre in possession of the premises in such a manner as to permit of this action. The whole argument proceeds upon the theory that tliere is a trust under the will, although the defendants do not, apparently, concede that the facts would constitute a cause of action under any circumstances. The will is complicated in its arrangement, and it does contain some elements of a trust nature, but we are of the opinion that it is lacking in some of the essential elements of an express trust, and that it did not vest title in the executors under the will of Hugh Smith.

Hugh Smith left him surviving his sisters, Margaret C. Smyth and Catherine T. Smith, his brother, Henry A. Smith,' the plaintiff’s testator, John H. Murphy and Edward F. Murphy, his nephews, and Jane T. Dillon and Louisa A. O’Donohue, his nieces, as his only heirs at law. By his will the' testator gave to his sister Catheriñe T. Smith the net annual income of his entire estate, both real and personal, after the payment for certain repairs, and the sum of $100 per month to his brother, Henry A. Smith, who was given no other interest in the estate. He does not attempt to vest the estate in the executors for the purpose of paying the income to the sister during life, but provides that the executors are to take care and charge of his whole estate, real and personal, during the lifetime of his sister. He then provides that the executors shall, if the brother Henry survives the sister Catherine, continue to pay the former $100 per month, and provides that a sum may be set apart and invested for that purpose, to become a part of the residuary estate upon the death of the brother, but he died in 1903, before the sister, so that this complication is out of the case. The testator then authorized the executors, or the survivors of them, to sell the whole or any part of his real estate from time to time in their discretion, except that the Murray Hill Hotel and the real estate situate on Avenue B were not to be sold during the lifetime of Catherine. Upon the death of Catherine the testator gives, devises and bequeaths one equal half part of all the rest, residue and remainder of his estate, real and personal, to his sister Margaret O. Smyth, and unto her, her heirs and assigns forever; but if she shall die before Catherine, then he gives, devises and bequeaths this share to the issue of his sister Margaret, to be equally divided between them per stirpes and not per capita. Likewise, upon the death of Catherine, he gives, devises and bequeaths the remaining undivided half part of his estate, real and personal, to his nieces and nephews, children of his sister Mary Ann Murphy, and of James Murphy, her husband, both deceased. The various proportions which were given to each of these nieces and nephews, and the contingent distributions, are not material to be mentioned. Finally the will provides a power of sale in the executors after the death of Catherine, and to divide the net proceeds of such sale among the people entitled thereto in the provisions of the will; such power of sale, however, to be exercised within the period of ten years after the decease of Catherine.

Catherine T. Smith, the life beneficiary, died on the 11th day of April, 1906, and it cannot be doubted that at that time each of the. beneficiaries provided for under the will came into the right of possession of the expectant estate, subject to the discretionary power of sale vested in the executors, which power has never been exercised, though it is alleged in the complaint that these executors are threatening to sell the Murray Hill Hotel property at a price below its fair value. Prior to the death'of Catherine, and on the 20th of May, 1905, by fourteen separate conveyances, John J. O’Donolme, Thomas J. O’Donohue, Jr., May Cecelia Dillon, Francis J. M. Dillon, Agnes M. Smyth,'Louis Smyth, Francis Smyth, Peter Smyth, Teresa B., Smyth, Jane T. Dillon, John H. Murphy, Edward F. Murphy, Margaret C. S. Carroll and Mary L. O’Donohue, now Mary L. Kelly, conveyed to Henry A. Smith (the plaintiff’s testator) one equal fourth part of all their right, title and interest in and to said lands and premises. These parties were those who were entitled to take upon the death of Catherine, and. they unquestionably had a right to convey their interest to Henry A. Smith, subject to the contingencies provided in the will, and upon the death of Catherine there wa"s an immediate right of possession, subject, perhaps,' to. the naked right on the part of the executors to sell the lands for the purposes of distributing the proceeds.

Henry A. Smith, as we have already seen, died in 1903, leaving a. last will and testament, and the plaintiff in this action is asserting his rights under the several conveyances above mentioned, and which involved the acts of every one of the persons who were interested in the distribution of the estste. Enough, we believe, has been pointed out to indicate clearly that Hugh Smith did not create a trust in his will. He not only did not attempt to vest the title in. his executors, in trust, but he specifically gave, devised arid bequeathed the income to Catherine for her life, and upon her death he gave, devised and bequeathed the entire estate, giving merely a naked power of sale to his- executors, not absolutely, but in their discretion. Before the death of Catherine, and while'some of. the interests were liable to be defeated by death, those in whom the estate eventually vested joined in conveying an interest in the property to the plaintiff’s testator, and thus all occasion for the exercise of the power of sale in the executors was at an end. It is urged that by conferring the power of sale an equitable conversion of the realty, including the Murray Hill Hotel and the Avenue B property, was effected; but if that be so, then, the beneficiaries having • disposed of a portion of their interest in the property, this power became useless; they had elected to take the property rather than tiie proceeds, and this, under well-recognized authorities, is entirely proper. If the grantees had conveyed their entire interest, so that the full title vested in Henry A. Smith, it certainly would not be contended that the executors, who had the power merely for the purpose of conveniently closing up and distributing the estate, were justified in selling the premises, and the rule ought not to be different because such interest only reached a one-fourth part of the estate. This is the doctrine of Greenland v. Waddell (116 N. Y. 234), and no reason suggests itself why it should not be applied in the present case.

But looking at the scheme of this will, and especially at the 10th and 11th clauses thereof, it is apparent that the testator, after the death of his sister Catherine, gave by the 10th clause one equal undivided half part of the rest, residue and remainder of his estate to his sister Margaret C. Smyth, wife of Bernard Smyth, to have and hold unto her, her heirs and assigns forever; and if she should die before Catherine, then to the issue of Margaret; and by the 11th clause, upon the death of his sister Catherine, the testator gave, devised and bequeathed .the remaining equal undividéd half part of all the rest, residue and remainder of his estate, real and personal, unto his nieces and nephews, children of Mary Ann Murphy and James Murphy, her husband, in proportions named in subdivisions of the 11th clause.

Here are specific devises which are not controlled as to vesting in ownership by the power of sale given in the 13th clause, and relating to the Murray Hill Hotel and the property on Avenue B. That 13th clause does not cut down the specific devises to mere legacies of the proceeds of sale. The title is in the devisees; and while the executors, no doubt, might have exercised the power of sale, not having done so the title is still in the devisees, and they may maintain partition. This view is reinforced when we have regard to the 7th clause of the will which gives to the executors power of sale with reference to all the rest of the real estate except the Murray Hill Hotel and the property on Avenue B. The general power of sale for the purposes of administration extends over all the real estate of the testator except that which is specifically devised by the other clauses of the will which have been referred to and in respect of which the power of sale is only discretionary to be exercised within ten years after the death of the testator’s sister Catherine and does not supplant or affect the clear title of those devisees who, on the death of Catherine, became the owners of the property in the respective interests nominated in the subdivisions of the 11th clause of the will above referred to.

The objection that the Murray Hill Hotel is in the possession of one Bates, under a lease executed for a period of twenty years, and that- this shows that all of the defendants are not in possession, is not tenable. The lease was made during the lifetime of Catherine, and was no doubt good during her lifetime, but the executors had no power to make a lease beyond the power given to them in the will. And this question may be determined in an action for partition. (See Weston v. Stoddard, 137 N. Y. 119 ; Satterlee v. Kobbe, 173 id. 91.) We are clearly of opinion that all of the necessary parties are before the court and that they are in possession of the premises sought to be partitioned, and that therefore the demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, was properly overruled.

The interlocutory judgment appealed from should be affirmed, with costs, with leave to the appellants fo answer on the payment of costs in this court and in the court below.

Patterson, P. J., Laughlin, Houghton and Scott, JJ., concurred.

Judgment affirmed, with costs, with leave to appellants to withdraw demurrer and to answer on payment of costs in this court and in the court below.  