
    Eliza Delafield, Resp’t, v. Francis C. Barlow et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed December 13, 1887 )
    
    Partition—Parties—Will—Construction op.
    One Shaw died owning an undivided two-fifths of certain real estate-upon Staten Island. He left surviving him a wife and four daughters, one of whom is the wife of the appellant, Francis C. Barlow. He disposed of his estate, hath real and personal, by will, in which, after giving certain legacies and devising his homestead upon a special trust, directed his executors to divide one-half of all the residue of his estate, both real and personal, into four equal parts, and gave one of said fourth parts to his executors in trust to receive the rents, profits and income thereof and apply the same to the use of his wife during her life, and after her death to apply the same to the sole and separate use of a daughter (naming her) during her life, and after her death to pay over said one-fourth part, together with any arrears of income, to the heirs of the said daughter, or-to such persons or uses as said daughter might by her will appoint. There- ■ were similar provisions as to each of the other fourths for the other-daughters and their heirs. The executors were directed to divide the other half of all the residue into four equal parts, and the testator bequeathed one part to each of his four daughters, naming them. The executors were empowered to sell the real estate when they should deem it most advantageous. In an action to partition the real estate the executors and trustees were made defendants Francis 0. Barlow, the appellant, was the only defendant who put in an answer. Upon the trial it appeared that at the time of the death of the testator, Mr. and Mrs. Barlow had a daughter, who was an infant, still living. Barlow made a motion that his daughter be made a defendant, as she was a necessary party under section 1588 of the Code. Held, that the motion was properly denied on the ground that she was not a necessary or proper party to the action; that she never could take the real estate and that she had no title thereto or interest therein as realty, and that the whole title was vested in the executors" and trustees. Held, further, that by the terms of the will there was an equitable conversion of the real estate mentioned into personalty, and that, therefore, she was not a necessary or proper party.
    This action was brought for the partition of certain real estate situated upon Staten Island, and the material facts are as follows : Francis George Shaw died in 1882, at the-time of his death owning an undivided two-fifths of the-real estate. He left surviving him a wife and four daughters, one of whom is the wife of the appellant, Francis 0. Barlow. He disposed of his estate, real and personal, by will, in which, after giving certain legacies, and devising his homestead upon a special trust, he dis posed of the residue of his estate as follows : “I direct my executors to divide one-half of all the residue of my estate, both real and personal, including the proceeds of all policies of insurance on my life not otherwise disposed of into four equal parts, and I give one of said equal fourth parts to my said executors, the survivors and survivor of them. In trust, nevertheless, to receive the' rents, profits and income thereof as the same shall accrue, and to apply the same to the use of my said wife during her life and, after her death, to apply said rents, profits and income to the sole and separate use of my daughter Anna, wife of George William Gurtis, during her life, and after her death to pay over, transfer and deliver the principal of said one-fourth part, together with any arrears of income, to the heirs of my said daughter Anna, or such person or persons, or to such uses as my said daughter Anna may by her will appoint.”
    There were similar provisions as to each of the other fourths for the other daughters and their heirs. The other half of the residue he disposed of as follows :
    
      “Fifteenth. I direct my said executors to divide the other half of all the said residue of my estate into four equal parts, and I give and bequeath one of said equal fourth parts to my said daughter Anna; one other of said equal fourth parts to my said daughter Susanna; one other of said equal fourth parts to my said daughter Josephine, and the remaining equal fourth part to my said daughter Ellen. Any moneys paid and advanced by me to either of my said daughters, and charged in my books of account as advanced against her share in my estate, shall be deducted, without interest, from the sum bequeathed to such daughter in this section; and if either of my said daughters shall have died before me, leaving issue, such issue shall have the parents share ; but if either of my said daughters shall have so died without issue, her share of said residue under this section shall go to my heirs or next of kin.”
    The seventeenth clause of his will is as follows: “ Seventeenth. I hereby authorize and empower my said executors, the survivors and survivor of them for the purpose of carrying into effect this my will, and the trusts herein before created, to sell, in their discretion, and on such terms as they may deem most advantageous, any or all of my real estate at public or private sale, and to execute and deliver to the purchasers thereof all the necessary conveyances,” etc.
    He appointed his wife and his three sons-in-law and his friend John Greenough, executors of his will and trustees of the trusts therein created. The executors and trustees were made defendants and it was alleged in the complaint that they were seized and possessed of two equal undivided fifth parts of the real estate sought to be divided. Francis 0. Barlow was the only defendant who put in an answer. Upon the trial it appeared that at the time of the death of the testator Mr. and Mrs. Barlow had a daughter, Louisa Shaw Barlow, who was an infant still living. Upon the trial upon affidavit setting forth the facts Barlow on his own behalf and on behalf of his wife and daughter made a motion that his daughter be made a party defendant on the ground that she was a necessary party under section 1538 of the Code. His motion was denied and the order denying it having been affirmed by the supreme court, general term, second department, he appealed to this court.
    
      Charles W. Wetmore, for app’lts: Sidney F. Rawson, for resp’t.
   Earl, J.

We are of the opinion that the motion was properly denied on the ground that Louisa Shaw Barlow was not a necessary or proper party to this action. It is undisputed that valid trusts were created as to the one-half of the residue of the testator’s real and personal estate, which he gave to his executors and trustees; and that during the continuation of the trusts, to wit; During the lives of the testator’s widow and of the several daughters, the title to the several quarters of real estate involved in the trusts was vested in the trustees. But the claim is made -by Mr. Barlow that after the death of his wife, his daughter might become entitled to the one-quarter of the real estate and that, therefore, she should have been made a party.

We are of opinion that she never could take the real estate and that she had no title thereto or interest therein as realty, and that the whole title was vested in the executors and trustees.

Construing all the provisions of the will together we think there was an imperative direction to sell the real estate, and there was, therefore, an equitable conversion thereof into personalty; and as to the rights of Louisa Shaw Barlow the property is to be treated as personal property.

The residue of his estate, both real and personal, is mingled together, and one-half thereof is given to his executors upon the trusts mentioned. The trustees are directed to receive “the rents, profits and income thereof,” which implies that they were expected to hold the real estate as well as the personal for a time, until, in the exercise of their discretion, they could convert the same, and during that time they were to lease the real estate and receive the rents thereof. But after the death of each daughter, the direction is that they should “pay over, transfer and deliver the principal of said one-fourth part, together with any arrears of income, to the heirs ” of the daughter, or to “such person or persons or to such uses” as the daughter might by her win appoint. This language shows that the testator contemplated that at the death of each daughter the one-fourth part put in trust for her benefit during her life should exist in the form of personal estate. The language used “to pay over, transfer and deliver the principal,” is not appropriate if applied to real estate, and is only appropriate as' applicable to personal estate. The principal, together with any arrears of income, was to be paid over, and it was supposed that the principal and income would both be of the same species of property, both personal.

The fifteenth clause shows that it was intended by the testator that the property given to his daughters should pass to them in the form of personal estate. He says: “ I give and bequeath,” language strictly more applicable to personal than to real estate. Then the money paid in advance by him to either of his daughters, and charged in his books of account as advanced, was directed to be deducted without interest from the “sum bequeathed;” and if it was real estate which the testator had in mind he would not have spoken of it as the “sum bequeathed.” While the language contained in the seventeenth clause giving the power of sale is not, standing alone, imperative, yet* when read in connection with the other clauses of the will, it should be so construed, and the discretion conferred upon the executors should be held to be a discretion only in reference to the time, mode of sale and the terms of sale. The sale was to be made for the purpose of carrying into effect all the provisions of the will, that is, for the purpose of making a division of the one-half among his daughters, and for the purpose of the trusts as to the other half for the benefit of his wife and daughters and their heirs or appointees.

We, therefore, reach the conclusion, not without some hesitation and doubt, that by the terms of this will there was an equitable conversion of the real estate mentioned into personalty, and that, therefore, Louisa Shaw Barlow was not a necessary or proper party defendant in this action. While precedents are not very valuable in a case like this, where the decision must be based upon the peculiar phraseology of the entire will, the case of Morse v. Morse (85 N. Y., 53), bears a strong analogy to this, and may be cited as an authority for our conclusion.

The order should be affirmed, with costs.

All concur, except Rapallo, J., absent.  