
    Josephine C. Meehan, Appellant, v. Charles M. Brennan, Individually, and as Administrator, etc., of Mary E. Brennan, Deceased, and Others, Respondents, Impleaded with Others.
    
      Will — in its construction intestacy should he avoided — implied power of sale — when a fee is not cut down, hut its manner of enjoyment-is changed,—effect of the-use of the word ' ‘ wish ” — repugnancy of provisions.
    
    A construction of a will, producing intestacy as to a large part of the real estate of a testatrix, should be avoided, if it is practicable to do so.
    Whenever it appears that the intent of a testatrix requires that her real estate should be sold in order to carry out the provisions of her will, a power of sale will be implied in the same manner as though it had been expressly given.
    Where a will, after declaring that, in the event of the death of - the testatrix, its-subsequent provisions are her “ wishes, desires and intentions,” directs that her stepchildren, specifically named, shall “share equally " with her own children in the “ net proceeds of the sale” of certain real estate and in “two-thirds of the net proceeds of the sale ” of certain other premises, and that the remaining third of the “net proceeds of the sale” of the latter premises and all “the net proceeds of the sale ” of certain other real estate shall be divided among her own children, and it is evident that the general scheme of the will requires a sale in order to carry it into effect, and where the will, although it does not appoint an executor, devolves upon an administrator certain duties connected with the care of the property, an imperative power of sale, as a necessary step in the distribution of the estate, will be implied in and be devolved upon an administrator with the will annexed, and the devisees will take absolute estates, as the expression of the “wishes, desires and intentions” of the testa^ trix must, when used in such a connection, be deemed to be imperative.
    The fact that a testatrix, after directing that two of her daughters should share equally'with her other children in the “net proceeds of the sale” of certain premises, provided by a subsequent clause of her will that their shares should be invested by her administrator in trust, and that the devisees should receive only the income during the lives of their husbands, upon whose deaths they should receive the principal, and, further, that if either daughter died before' her husband, the principal should go to her issue, and, failing issue, to her-heirs at law and next of kin, does not present a case where the gifts are irreconcilable, nor one where an estate in fee is cut down to an equitable interest, as the subsequent provisions of the will merely control the manner in which the estate shall be enjoyed by the legatees during a certain portion of its existence.
    The intention of a testatrix is to be ascertained from a consideration of all the provisions of her will, and a provision which seems to conflict with another will not be abandoned unless an unreconcilable inconsistency exists between them.
    Appeal by the plaintiff, Josephine J. Meehan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of February, 1897, upon the decision of the court rendered after a trial at the New York Special Term, except so much of said judgment as directs the recovery of costs.
    
      Michael J. Scanlcm, for the appellant.
    
      Benjamin Yates, for the administrator, respondent.
    
      Leopold Leo, special guardian for the infant respondents.
   Rumsey, J.:

The action was brought to secure a construction of the will of Mary E. Brennan, who died in the city of New York on the 13th of November, 1895, having made the will in question on the day before her death.

In the.first two clauses of the will the testatrix undertakes to dispose of all the. real estate of which she was the owner. There are two classes of people whom she desired to benefit from the estate: Her' stepchildren, the children of her husband by a former wife, ■ and her own children. It was the purpose of the first two clauses of the will to carry this intention into effect. She prescribed by the first clause of the will, that her stepchildren, naming them, “ shall share equally with my own children, in the net proceeds of the sale of the premises No. 94 & 96 White street, No. 88 Elm street, No. 156 West 15th street, and two-thirds (•§) of the net proceeds of the sale of the premises No. 514 Pearl street.” By the second clause of the will she directs “that the remaining one-third (•§■) of the net proceeds of sale of the premises No. 514 Pearl street and the net proceeds of the sale of the premises No. 155 West 92nd street shall be divided among my own children,” naming them. One of these children was the plaintiff.

It is claimed on the part of the plaintiff that the construction of these two clauses of the will is such, either that the real estate of the testatrix did not pass by them, or that it passed as real estate to the persons named in those clauses, in the shares therein mentioned, respectively. It is quite clear that the real estate, as such,, is not devised by any part of the will, unless the clauses above quoted make some disposition of it. Therefore, unless these clauses be construed as disposing in some manner of the real estate, the testatrix died intestate as to a great portion of her property. A construction of the will which should bring about this result is always to be avoided if it is practicable to do so. (Vanderpoel v. Loew, 112 N. Y. 167, 177.) While the first and second clauses of the will do not, in terms, dispose of the real estate as such, it cannot be disputed that they do dispose of the proceeds of that estate. They say so in so many words, and the only question is what construction shall be given to those clauses for the purpose of carrying out the intention of the testatrix as she has expressed it. It can only be done if a power of sale has been given by those clauses, and that such a power of sale is given, we think cannot be denied. . To be sure the power is not expressly given, nor is any person mentioned who shall execute it, but while these considerations properly bear upon the construction of the will, they are not by any means conclusive that the'power of sale is not intended to be given. It is evident that the general scheme of the will requires a sale to carry the provisions of the will into effect, and that these provisions cannot be executed without such a power of sale. The will does not devise the real estate as such. The very fact that she speaks of the proceeds of her real estate, instead of devising the real estate itself, indicates conclusively, as we think, that she intended that the real estate should be sold. The testatrix clearly intended that her stepchildren should take a portion of the proceeds of the real estate, and unless that property shall be sold so that proceeds shall arise, the stepchildren take nothing by the wall, and thus the intention of the testatrix would fail. Whenever it appears that the intent of the testator requires that the real estate should be sold to carry into effect the provisions of a will, a power of sale will be implied precisely as though it had been expressly given. (Cahill v. Russell, 140 N. Y. 402.)

But it is said by the appellant that there is no expressed direction on. the part of the testatrix that the persons named in these clauses should have the proceeds of the real estate. It is said in the will that the testatrix declares that in the event of her death the following are her “ wishes, desires and intentions.” • These words do not necessarily, of course, in all cases imply a command, but whenever they are used in such ' a connection as this by a testatrix, the question is raised whether the testatrix meant by them simply to advise or influence a discretion which she vests in somebody, or whether 'she intended to control or direct a certain disposition. (Phillips v. Phillips, 112 N. Y. 197.) If the latter intention is deducidle,, then the word “ wish ” will be construed as imperative and to imply a direction by which the executor of the will and the courts are to be bound. In this case the testatrix" evidently intended to dispose of this property. She was at liberty to do what' she chose with it. She expressed her intention by the use of the word “ wish,” and in the connection in which she has used it, it clearly has, as. we think, the same force as though the word direct ” had been .used.

But it is said that no power of sale will be implied, because no person is mentioned- in the will upon whom the duty is devolved to ■execute it. It is very true that the testatrix does not nominate any executors in her will, but she evidently intended that an administrator should be appointed to carry into effect the dispositions of the will. That that is so appears" by the provisions of the fifth clause by which she devolves upon the administrator certain duties connected with the care of the property. Even were it not so, the ■court, for the purpose of carrying the will into effect, would appoint ■ an administrator with the will annexed. . The power of sale which was created by this will was peremptory, the dispositions of the will necessarily requiring that the real estate should be converted into personalty. As the intent of the testatrix can be carried into effect in no other way, the real estate will. be deemed to have been com verted into personalty as of the time when' the sale should have taken place (Fraser v. Trustees of United Pres. Church, 124 N.Y. 479), and these proceeds would necessarily go into the hands of the administrator with the will annexed, to be accounted for by him as personalty. (Stagg v. Jackson, 1 N. Y. 206.) It is clear that the testatrix intended that these proceeds should go into the hands •of. the administrator, because by the fifth clause of the will she gives special instruction to the administrator as to the disposition and care of a portion of it. "From all this we think it is necessarily to be implied that the testatrix intended that the power of sale should be carried into effect by the administrator. The power did not involve the exercise of discretion in any way, hut was simply one of the steps to be taken for the purpose of distribution of the estate. Being imperative and not involving the exercise of personal discretion on the part of any one, it belonged to the office of executor or administrator under the will and may be exercised by him. (Mott v. Ackerman, 92 N. Y. 539, 554.) We have no doubt, for these reasons, that the will created a power of sale, and that the administrator with the will annexed was the proper person to carry that power of sale into effect.

The next question raised upon the construction of this will arises upon the fifth clause. By the second clause, as has been stated, the testatrix directed that there should be divided among her children the net proceeds of the sale of certain premises therein mentioned. Of these children the testatrix’s daughters, Mary E. Kane and Josephine 0. Meehan, were two. By the fifth clause of the will the testatrix directed that the shares of those two daughters in all her property, both real and personal, should be invested by her administrator in trust for them, and the income derived therefrom should be paid to them during the lifetime of their respective husbands, and, upon the death of said husbands, the daughters should receive the principal .sum in fee simple absolute. The testatrix further directed that if either of the daughters should die before their husband, leaving issue living at their death, the principal should go to their issue in fee simple absolute, and if either should die without leaving issue, then said principal should go to their next of kin and heirs at law in fee simple absolute.

It is claimed on the part of the-plaintiff that this disposition of her share of the property is inconsistent with the gift to her in the second clause of the will. She says that by the second clause she took an absolute- estate, and that by the fifth clause that estate is cut down from a legal estate in perpetuity to a mere equitable interest. We do not accede to this contention. The thing to be ascertained is the intention of the testatrix. That is to be ascertained upon an examination of the whole will, which is one instrument, and in arriving at such intention no one part any more than -another can be' excluded from consideration. If the provisions of one part of the will are inconsistent with those of another, so that both cannot stand, then one or the other must be .abandoned, but .they never will be abandoned unless there is an irreconcilable inconsistency between them. In this case no such inconsistency exists. The gift to the two daughters in the second clause of the will, if it stood alone, - would undoubtedly be construed as carrying an absolute interest to their shares of the personal property, but that is the mere result of a rule of construction which will not be applied in the presence of any other provision by which it is limited. The provisions of the second clause do not in any way control the manner of enjoyment by the plaintiff of the share which is given to- her. That is left to be controlled by the provisions of the fifth clause of the will. • Those provisions, while-they do not in any way cut down the duration of the plaintiff’s estate, control the manner of its enjoyment, and there is nq inconsistency between the two clauses. The intention of the testator in such cases is to be ascertained, upon a consideration of the whole instrument, and not upon a single or isolated clause detached from its relation to those with which it is associated. .(Taggart v. Murray, 53 N. Y. 233, 236.) -There is no repugnancy in a general bequest to a person in language which would ordinarily convey the whole estate, and a subsequent provision in the same ■ will limiting the manner in which that estate shall be enjoyed by .the legatee during a certain portion of- its existence.

For these reasons we think that the conclusion reached by- the learned justice at Trial Term as to the construction of this portion of the will was correct.

The judgment, therefore, must be affirmed, with costs to the guardian ad litem to be paid out of the estate, and with costs to all the other defendants to be paid "by the plaintiff personally.

■ Fan Brunt, P. J., Williams, Patterson and Parker, JJ., concurred.

Judgment affirmed, with costs to the guardian ad litem to be paid-out of the estate, and with costs to all the other defendants to be paid by the plaintiff personally.  