
    Mary E. Carroll, Ex’rx, Pl’ff, v. John Conley, Jr., Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    
    
      1. Wills—Construction.
    By the will oí plaintiff’s testator the residue of his estate was given to his daughter ‘ • to have and to hold the same to her in her own right and free from the control of any husband she may intermarry with. By a subsequent clause it was provided that in the event of her dying without marrying, and leaving children her surviving, the estate given to her should go to the next of kin of testator’s blood. Held, that the death referred to was the death of the beneficiary during the lifetime of the testator.
    2. Same—Discretionary power of sale may be exercised by surviving EXECUTOR.
    A power of sale given to executors, if, in their judgment, it be for the benefit of the estate, may be executed by a surviving executor, and the judgment of the executor as to its advisability is conclusive so far as the title conferred upon the purchaser is concerned.
    Agreed case submitted for the judgment of the general term.
    This controversy arises upon the question of the right of plaintiff, as executrix, to convey property held by her under the will of her father. Defendant claims that under that will the plaintiff has no right to convey the premises in question, and that she has only a life estate therein, and is not entitled to convey as executrix.
    
      J. Delahunty, for pl’ff; George B. Westerfidd, for deft
   Barrett, J.

Two questions are here presented. First, whether Mary E. Carroll took an absolute estate in fee under her father’s will r Second, whether the plaintiff, as surviving executrix, was entitled to convey the premises in question under the power conferred by the fifth clause of the will ?

Both questions should be decided in the plaintiff’s favor.

By the third clause of the will, an absolute estate in fee was given to Mrs. Carroll. That clause reads as follows:

Third. It is my will, and I do hereby so direct, that all the rest, residue and remainder of my property and estate, both real and personal, go to my daughter, Mary Ellen Kelly, and I do hereby give, devise and bequeath to her all my real estate, wheresoever situate, and all my personal estate, to have and to hold the same to her in her own right, and free from the control of any husband she may intermarry with, subject, however, to the provisions contained in clause 1 second,’ in favor of my sister, Rosanna.”

The question is not affected by the provision in the second clause in favor of Rosanna. That is simply a direction to the executors and trustees to expend out of the estate such sum or sums as may be sufficient to provide Rosanna with apartments to live in. Indeed, the defendant concedes that this third clause, •standing alone, would plainly give Mrs. Carroll (who is the daughter in question, and who before her marriage was named Mary Ellen Kelly) a fee subject to the bequest of Rosanna.

He claims, however, that the “ fourth ” clause indicates an intention on the testator’s part to limit his daughter to a life estate.

The fourth clause is in these words:

Fourth. It is my will, that in the event of my daughter dying without marrying and leaving children her surviving, the estate given to her in the previous clause of this my will shall go to the next of kin of my blood, and not otherwise, share and share alike in equal portions, in conformity with their relationship to me.”

We think it entirely clear that the death here referred to was the death of the beneficiary during the lifetime of the testator.

The case of Quackenbos v. Kingsland, 102 N. Y., 128; 1 N. Y. State Rep., 175, seems to be directly in point and it is quite decisive. The only difference between that case and the present is that there the devise of the residue was to the testator’s son Daniel “ and to his heirs." The difference, however, is immaterial so far as the question under consideration is concerned, for in the present state of the law the words “ and to his heirs ” have no special significance and are really surplusage. The language of the present devise, which is exceedingly broad and comprehensive, equally indicates an intention to give an absolute fee, and there is nothing elsewhere in the will tending to change or modify the legal sense of the testator’s words as used in this third clause. The case on this head is also within the principle enunciated in Black v. Williams, 51 Hun, 280; 21 N. Y. State Rep., 263.

The other question is equally clear. The power of sale is given to the executors and trustees if, in their judgment, “ it be for the advantage of the estate.” The judgment of the executors upon this head is conclusive so far as the title conferred upon the purchaser is concerned. Roseboom v. Mosher, 2 Denio, 61. This case was followed in Taylor v. Morris, 1 Coms., 341, where it was held that the statute applies to discretionary, as well as peremptory powers, and that where any of the executors neglect or refuse to qualify, the sale under such a discretionary power may be made by the .executors who take upon themselves the execution of the will. This applies equally to the surviving executor.

Upon both points, therefore, we are of opinion that the plaintiff is able to give a good and marketable title, and that she should have judgment accordingly, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  