
    Van Winkle v. Fowler.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Powers—Testamentary—Power oe Sale.
    A devise to the executor of “ all the balance of the money that ” testatrix might receive under a certain will, and also “all the right, title, and interest” which testatrix, as one of the children of a third person, deceased, might he entitled to under such will, “in trust that my said executor will use the same for the purpose of clothing, educating, and maintaining” testatrix’s children, confers a power of sale. Barnard, P. J., dissenting.
    This is a case submitted on an agreed statement of facts, Albert W. Van-Winkle being plaintiff, and Sylvanus L. Fowler, defendant. Plaintiff contracted to sell defendant a certain tract of land in the city of Brooklyn, and defendant refuses to take title, on the ground that the clause in the will of Sarah E. Higgins, quoted in the opinion, does not confer upon the executor' therein power to sell the land in question.
    
      Herbert G. Hull, for plaintiff. W. M. S afford, for defendant.
   Pratt, J.

The sole question in controversy in this case relates to the con- ■ struction of the following clause in the will of Sarah E. Higgins. Item. “I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June twelfth, A. D. 1876, or all-the right, title, and interest which I, as one of the children of Allen Hubbard, deceased, am-entitled to under and by virtue of the last will and testament of the .said Elmina H. Graves, in trust that my said executor will use the same for the purpose of clothing, educating, and maintaining my said children; and, in case my said executor shall die before the whole of the estate which shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands • at the time of his decease shall be divided equally between them, share and share alike, and, in case any of my said children shall die without issue, the survivor shall take such deceased child’s share.”

We think it clear from all the facts and circumstances submitted that this clause must be held to give a power of sale to the executor. A power of sale may be implied where the circumstances are such that the will cannot be carried out without such an implication. The clause gives the property to the ■executor in trust for a specified object, which cannot be carried out except by a sale of property. It is not very clear' what was in the mind of the testatrix as to whether the property she was to receive under the will of Mrs. Graves was real estate or money, but she used language sufficiently comprehensive to include both. She gives the balance of money, also “all the right, title, and interest which I, as one of the children of Allen Hubbard, am entitled to under and by virtue of the last will of Elmina H. Graves.” The title is thus .clearly vested in the executor in trust. The sole object the testatrix had in view by this clause of the will was that the property, whether personal or real, should be used for the benefit of her children. As she stated in the will, “in trust that my said executor will use the same for the purpose of ■clothing, educating, and maintaining my said children. ” Here is a clear power .conferred upon the executor to use the estate for a specific purpose. The whole object of the trust will fail in this case, unless the executor can convert the real estate into money. The plaintiff must have judgment on the agreed ■statement of facts, with costs.

Barnard, P. J.,

(dissenting.) Allen Hubbard was the owner in fee-simple of the land in question, when he died, by devise from Elmina H. Graves. The fee, however, was chargeable with legacies, which there was no personal ■estate to satisfy. Hubbard died intestate, leaving nine children. One daughter has since died, leaving nine children, and leaving a will which contains this clause: “I give and bequeath to my executor all the balance of the money •that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June 12, A. D. 1876, or all the right, title, and interest which I, as one of the children of Alien Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmina H. Graves, in trust that my said executor will use the same for the purpose of clothing, educating, and maintaining my said .children, and in case my said executor shall die before the whole of the estate which'shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands .at the time of his decease shall be divided equally between them, share and share alike.” The executor of Sarah E. Higgins conveyed as such the inter.est of Sarah E. Higgins in the land, and the question is whether by the clause in question he had power to sell her own ninth interest in the property. The will contains no express power of sale. The testatrix included a bequest of money to be received, and also all right, title, and interest to whatever she was entitled. The trust was to use the same for the support of the children. The trust to use a fund made up of real and personal property, in the absence .of a specific direction, does not warrant the conclusion that the testator intended a conversion of the real estate into personalty. The duty of making a final division of the real estate does not imply a power of sale. Hobson v. Hale, 95 N. Y. 588; White v. Howard, 46 N. Y. 144. There is nothing in the will to show an intent that the executor should not use the land as land, .and the sale thereof is not justified. There should therefore be a judgment /or the defendant upon the submitted case, with costs.  