
    In the Matter of the Estate of Mary Arns, Deceased.
    Surrogate’s Court, New York County,
    May 12, 1932.
    
      Taylor, Blanc, Gapron & Marsh, for the executors.
    
      Herman L. Falk, for Charles W. Arns.
   O’Brien, S.

This is an application for a construction of the will of the testatrix as to whether or not a power of sale conferred upon the executors by the eighth paragraph thereof is an imperative power of sale or simply discretionary. This paragraph of the will reads as follows:

“ Eighth. I nominate, constitute and appoint my son, Charles William Arns and Adam Wiener, Counsellor-at-law, executors of this my last will and testament, giving them full and absolute powers as such, including the power to sell, lease, mortgage, or otherwise dispose of any or all of my estate, as they see fit.”

At the time of the death of the testatrix she owned two parcels of real property located in 5 the city of New York. These two parcels of property are included in the residue of her estate which was devised one-fourth to Charles W. Arns, one-fourth to Arthur Arns, one-fourth to Josephine Arns and the remaining one-fourth in trust for the benefit of Louis R. Arns. As the real property is not susceptible of physical division into four parts in order to effectuate the devises to the testatrix’s four children the only way in which the testamentary scheme can be carried out is by a sale of said real estate. The testatrix realizing this possibility inserted the eighth paragraph in her will which contains a power of sale and I hold that said power of sale is mandatory. By the use of the words “ as they see fit ” the executors are vested with a discretion as to the time of the sale. (Haight v. Brisbin, 96 N. Y. 132; Lent v. Howard, 89 id. 169; Salisbury v. Slade, 160 id. 278.) Submit decree on notice construing the will accordingly.  