
    John Cahill, Ex'r, Resp't, v. Joseph H. Brennan, Impl'd, App'lts.
    
      (Supreme Court, General Term., First Department,
    
    
      Filed April 14, 1893.)
    
    Will—Power of sale.
    Where the only clause relating to the sale of real estate by the executor in a will and its codicil which gave legacies largely exceeding, in the aggregate, the value of the testatrix’ personal property, was “until the sale and conveyance of said premises by mv executor, as hereinafter provided, I give and devise unto my sister C. the use of the top floor of premises-known as No. 237 Bast Fifty-second street, New York city, free of rent,” Held, that there was no power of sale contained in the will.
    Appeal from a decree of the court in this action construing the-will of plaintiff’s testatrix and fixing the amount of the lien of the appellant on the leasehold premises described in the complaint.
    
      G. W. Cotterill, for app’lt; C. Elliott Minor, for resp’t Cahill; C. H. Morgan, guardian ad litem, for resp’t Manning.
   Ingraham, J.

The action was brought to obtain a judicial construction of the will and codicils of Elizabeth Broderick, deceased. The judgment of the court below held that the true intent and meaning of the will gave to the plaintiff, as executor, the right and power to sell the real property owned by the deceased, known as “ No. 237 East Fifty-second street,” in the city of New York, for the purpose of applying the proceeds of such sale to the pa}'"ment of the debts of the deceased, and to the payment of the legacies given by the will and codicils; that it was the intention of the deceased to convert said real estate into personal property ; and that the direction to sell had the effect of making the same personal property, for the purposes aforesaid. It was further held that the unexpired term of certain leasehold premises-held by the testatrix was personal property, and that this appellant had a lien on said leasehold premises for the sum of $399 per , annum; and the judgment directed the plaintiff, in selling said leasehold premises, to pay to said infant appellant a sum sufficient to extinguish such lien.

The infant appellant appeals from all of the judgment, except that part which adjudges that the defendant Brennan has a lien on the leasehold premises. There is thus no appeal from the provisions of the judgment holding that Joseph H. Brennan has such lien on the leasehold premises, and that question is not before us for review. The court below held that there was no general power of sale of all the real estate given to the executor, that the legacies were not a charge upon the real estate, and that the leasehold was personal property. We agree with the court below that the leasehold is personal property, and, as such, vested in the executor, to be applied in the usual course of administration of the estate. We also agree with the court below in the determination that the legacies are not a charge upon the real estate of 'the testatrix, and that there is no general power of sale contained in the will. *

The remaining question to be determined is whether there is a special power of sale as to the premises No. 237 East Fifty-second street, and an equitable conversion of said premises into personal property. The provision from which the court below inferred this power of sale is the second clause of the will. It is there provided:

“ Until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise unto my sister Catherine Denny the use of the top floor of premises known as ‘No. 237 East Fifty-second street,’ New York city, free of rents.”

There is no provision in the will by which the executor was authorized to sell and convey this piece of property; and this power of sale must be implied, if at all, from this single provision, coupled with the fact that the will and codicil give legacies which, in the aggregate, largely exceed the value of the personal estate of the testatrix. It seems to us very clear that the court cannot infer a power of sale from this latter fact alone; for, if that can be so, in every case in which legacies are given in excess of the personal property, where the testator leaves real estate, the legacies would be a substantial charge upon the real estate.

It would be contrary to the settled rule in this state, that legacies are not such a charge unless it expressly appears in the will that it was the intention of the testator to make them a charge upon real estate. We think that the second clause of the will, standing alone, cannot be said, either expressly or by inference, to give to the executor a power of sale. In the first place, the very language used contemplates a further provision in the will as to such sale. The words are, “ until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise," etc. Just what sale or conveyance was in the mind of the draughtsman who prepared this clause is not apparent. The conditions upon which the sale was to be made do not appear, but it is perfectly clear that it was a sale to be thereafter provided for that was intended, and not that the testatrix intended by the language used in this clause of the will to authorize the sale. It might be that she intended, if it became necessary, to subsequently authorize her executor, by a codicil, to sell; that before such codicil was executed she changed her mind, and that this condition was annexed to the devise to her sister so that such devise would not prevent the proper execution of any power to sell that she should subsequently wish to give. We cannot tell what authority to sell the testatrix intended to give to her executor, or what conditions she intended to impose upon the exercise of that power. We know that she never did give her executor an express power of sale; and to say that the testatrix intended to give a power of sale by language which limited a devise to the time that the property should be sold as afterwards provided would be to imply such intention from words that mean the exact contrary; would be to ■say that she intended to grant a power of sale by the clause in question, when, by the words used, she said she intended thereafter in the instrument to give a power of sale.

We think, therefore, that there was no power of sale contained in the will in question, and that the judgment must be modified by so declaring, and, as modified, affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.

Van Brunt, P. J., and O’Brien, J., concur.  