
    Epaphras L. Barber and Others, Appellants, v. Marshall O. Terry and Frank L. Hall, Individually and as Executors, etc., of Tootie McGregor Terry, Deceased, and Others, Respondents, Impleaded with Edwin L. Barber and Others, Appellants, and James M. Robertson and Walter S. Adams, as Executors, etc., of Sophia L. B. McCrosky, Deceased, and Others, Defendants.
    Second Department,
    June 16, 1916.
    Decedent’s estate — devise to charitable institution—statutory limitation — will — power conferred upon executors to allot property in kind —partition — when action premature.
    A testatrix leaving a husband surviving cannot give or devise over one-half of her estate to benevolent and charitable institutions as provided in section 17 of the Decedent Estate Law.
    Where a testatrix authorizes her executors in them discretion to retain the property of the estate, whether real or personal, as the same shall be received by them, and in their discretion to “ distribute the same in kind to the persons who shall become entitled to any part thereof under the provisions ” of the will at a valuation to be placed thereon by the executors, such valuation to be binding upon beneficiaries, the heirs at law entitled to share in a portion of the estate which constituted the excess over charitable devises allowed by the statute are not entitled to maintain an action to partition certain lands in which they claim a fractional interest, for owing to said power conferred upon the executors the title of the heirs is defeasible until the executors have made an allotment, and hence the action for partition is premature.
    Appeal by the plaintiffs, Epaphras L. Barber and others, and by the defendants, Edwin L. Barber and others, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1915, upon the decision of the court after a trial at the Westchester Special Term.
    
      Walter J. Moore, for the plaintiffs, appellants.
    
      Scott McLanahan, for the defendants, appellants.
    
      Ernest P. Hoes, for the respondents.
   Per Curiam:

The testatrix, having been survived by her husband, Dr. Marshall 0. Terry, had not power to give or devise over one-half of her estate to benevolent and charitable institutions. (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 17.) Her attempted devise or bequest was valid “to the extent of one-half, and no more.”

For the purpose of this appeal we have these amounts:

Total estate, less debts and expenses........;. $2,556,208 16
Amount (being half) available for charity...... $1,278,104 30
Total bequests:
To the A. M. McGregor
Home.................. $1,793,066 82
To St. John’s Church...... 10,000 00
To Free Kindergarten Assn. 5,000 00
-- 1,808,066 82
Intestacy excess............................. $529,962 52

The will created (8th paragraph) a trust fund to the husband, Dr. Terry, for life, of $500,000, with remainder to the A. M. McGregor Home. In other legacies, not charitable, the will gave $325,000.

The 19th clause of the will provided for paying legacies" in full in the order in which they are set forth in the will, without any pro rata abatement if the estate should be insufficient to pay all of them.

The 21st clause authorized the executors and the trustees of the trust hereinbefore created “to sell at public or private sale, for cash or credit, and to lease,” and gave a general power of disposition.

For this appeal, however, the important provision is the 20th: “I hereby authorize and empower my executors at their discretion, to retain the property whether real or personal, constituting my estate, as the same shall be received by them at their discretion to distribute the same in kind to the persons who shall become entitled to any part thereof under the provisions of this my will, at valuations to be placed thereon by my said executors, and I direct that the valuations so fixed shall be binding upon all persons interested under this my will. ”

The present plaintiffs are the nephews and nieces of deceased. They sue to partition land on De Lancey avenue in Mamaroneck, Westchester county, in which they claim fractional interests. The answer denied title in plaintiffs, and also set up a lien in favor of the executors for the transfer tax that they had advanced. The court below rendered judgment dismissing the complaint upon the merits.

The executors have power to allot any of deceased’s estate to those entitled under the will. It is a power created by devise in a will, which the executors may yet exercise so as to take the lands from the heirs. “ The heirs and next of kin of the testatrix derive their title under the law of descents and distribution, and their rights attached immediately on the death of the testatrix, to any part of the estate not validly disposed of by the will. If the power attempted to be created by the will was valid, their rights, whatever they were, were subject to it.” (Read v. Williams, 125 N. Y. 560, 570.)

The respondents rely upon Rich v. Tiffany (2 App. Div. 25), where executors had power over the corpus of the estate, and Matter of Teed (59 Hun, 63), which held that such charitable gifts should not come wholly from personalty (p. 66). Appellants cite Chamberlain v. Chamberlain (43 N. Y. 424), where no equitable conversion occurred, because the power to sell was discretionary and not absolute; also Matter of Clark (62 Hun, 275), where powers confided to executors nevertheless did not subject the real property to payment of charitable gifts.

Under the clauses of the present will the lands, including that which is the subject of this action, are not yet so held by the heirs that, in their suit for partition, the court could authorize an indefeasible title to a purchaser.

While it is settled that a mere testamentary power of sale would not take from the heirs the right to have partition (Hayden v. Sugden, 48 Misc. Rep. 108; Wittel v. Wittel, 82 N. J. Eq. 229), nor would such a power of allotment to executors have this effect, if the allotment were to be. only among those tenants in common who were joined as parties in the partition (Manley v. Manley, 61 Misc. Rep. 183) — the present power of the executors to allot, or to sell, may be exercised so as to take away this, or any other real estate of decedent, and apply it so as to form the corpus of either fund, or to satisfy the large legacies of over $300,000.

Before the executors’ unrestricted powers of allotment Khali have been exercised, the heirs’ title remains defeasible. Therefore, this partition suit is premature.

In view of the terms of paragraph 21, and the powers conferred on the executors to take and apply either realty or personalty, the court is not now called on to instruct or direct the executors in the discharge of this trust. In order to leave the will in full force, and not to restrict the executors’ powers under it, we deem it better to rescind and reverse the conclusions of law numbered fifth and eleventh, both in the decision and in the judgment, but to confirm the findings of fact, and the other conclusions of law by the court at Special Term.

The judgment is, therefore, affirmed, with costs to the respondents Terry and Hall, individually and as executors, pays able out of the estate. The conclusions of law numbered fifth and eleventh are, however, rescinded and reversed.

Jenks, P. J., Thomas, Carr, Bioh and Putnam, JJ., concurred.

Judgment affirmed, with costs to the respondents Teny and Hall, individually and as executors, payable out of the estate. The conclusions of law numbered fifth and eleventh are, however, rescinded and reversed.  