
    DUNSHEE against GOLDBACHER.
    
      Supreme Court, First Department, First District; General Term,
    
    
      May, 1870.
    Power of Executors.—Construction of Will.— Power of Sale.—Condition.
    A will gave to the executors the whole estate in trust, gave to the wife a third of the income of the estate during widowhood, and directed that lif testator should survive his wife, his executors should dispose of the estate at public or private sale, at such time as they should think most advantageous, within six months after his demise; and finally directed the distribution of his estate to his four sons equally. The testator left surviving him, besides his sons, a granddaughter, by a deceased son, and to her he gave a legacy.
    
      Held, 1. That, notwithstanding the devise to the executors, the estate vested, on testator’s death, in the four sons, subject to the devise of one-third of the income to the wife during widowhood, which was as to the real estate, in effect a devise of one-third thereof during widowhood.
    2. That the power of sale was a power in trust merely, and was limited to the time of six months after testator’s decease, as well as contingent on his surviving his wife; and it could not be exercised after that period.
    3. Hence the executors could not give title under an agreement of sale made more than six months after the testator’s death.
    Under a will giving the widow certain perishable articles, absolutely, and others of permanent character, for life, and after her decease, to the testator’s sons, named; arid giving also to his wife his interest in the estate of his father, charging his executors, if not detrimental to the interests of his heirs, named in the will, to collect the same, -and dispose of it as herein directed; and lastly, directing that, at the decease of his wife, “ the said property, or the amount collected thereon, or so much thereof as shall be then remaining in the possession or under the control of my said wife, shall be divided equally among my said children,” naming them;—
    
      Held, That the widow took a life estate, and the children named took a vested remainder in the real estate of which testator died seized, including his interest in that of his father. j
    Submission of controversy without action.
    This was a controversy arising between James Dnnsbee, executor of Samuel Dunshee, deceased, and' Max Q-oIdbacher, submitted to the supreme court, at general term, in the first district, pursuant to section 372 of the Code of Procedure.
    The statement of facts agreed on set forth, that in July, 1868, the parties agreed on a sale, by plaintiff to defendant, of three lots of land on the south side of One-hundred-and-forty-third-street, beginning five hundred feet west of Eleventh-avenue, or four hundred and seventy-five feet west of the boulevard, and extending seventy-five feet westerly, and half the block southerly. The plaintiff agreed to give a proper deed, free from all incumbrances. '
    An executor’s deed of said premises, executed by the plaintiff and Henry W. Dunshee, as executors, &c. of Samuel Dunshee^ deceased, was subsequently tendered to said defendant, and the balance of the purchase money demanded of him, who declined to pay the same, on the ground of objections to and alleged defects of title.
    . The premises in question were originally owned by Samuel Dunshee, who died seized of the same in January, 1854, leaving him surviving, his widow, Sophia Y. Dunshee, and four sons, viz: William K., John, James (the plaintiff), and Henry W., and one granddaughter, Eunice E., wife of Onderdonk Angevine, daughter of a deceased son, Elias O., his only heirs at law.
    He left a will, which contained the following provisions :
    Clause 1st appointed James and Henry W. executors, with his wife, executrix, or the survivor or survivors of them.
    “2nd. I give and bequeath unto my said executors,
    
      and executrix (should she survive me), in trust, all my estate, both real and personal, of which I may die seized, to be disposed of in the following manner, that is to say: I wish them to pay all my funeral expenses, and all my just and honest debts.
    “3rd. I give and bequeath unto my beloved wife, Sophia V., one full third of the neat income of my said estate, and also the use and occupancy of all my household furniture during her widowhood.
    “4th. I direct my said executors to let or lease out all my real estate to the best advantage, keeping the buildings insured and in good tenantable order during her widowhood ; but in case I survive her, then it is my wish and will that my'executors, after my demise, shall dispose of all my'estate, both real and personal, either at public or private sale, at such túne as they may think most advantageous, within six months after my demise, giving good clean executors’ deeds for the real estate.”
    5th. The testator gave sundry benevolent legacies.
    6th. A legacy to his granddaughter.
    7th. This-clause provided that certain debts due testator from his sons, John and William K., should be added to his estate, and set off to them respectively as part of their respective portions of the estate, “as I wish all my children to share and share alike. My executors, or the survivor of them, will thus distribute my estate equally to my four sons, namely, John, William K., James and Henry W. Dunshee.”
    Letters testamentary upon this will were duly granted by the surrogate to the executors and executrix named therein, February 21, 1854, and duly recorded in the surrogate’s office.
    Sophia V. Dunshee, the widow and executrix of said Samuel Dunshee, died September 17, 1861, never having remarried.
    All the heirs at law of Samuel Dunshee are now living, and of full age, except one son, John, who died September 8, 1867, leaving him surviving, his widow, Catharine Dunshee, and four children, viz: Samuel S. K., Spencer H. C., Eunice Emma, wife of Horatio H. Fraser, and-Harriet C., his only heiis at law.
    The said John Dunshee also left a will, which was duly admitted to probate by the surrogate of Hew York, January 6, 1S6S, and recorded. This will contained the following provisions :
    Clause 1st directed the payment of debts.
    2nd gave household stores, china and crockery and moneys which should be left in his house, to his wife.
    “ 3rd. I also give to my said wife Catharine the use and enjoyment, during her life, of the household goods and furniture, fixtures and utensils, all plate, and the books, paintings and prints of which I shall die possessed.
    “ 4th. And from and after the decease of my said wife, I direct that the said articles, or so much as shall remain thereof, shall be divided equally among my children, to wit, equally according to value among” [naming them].
    
    “5th. I also give and bequeath unto my said wife Catherine all, any and every interest I now have, or'may acquire or become possessed of in my father’s (Samuel Dunshee’s) estate, together with all and any papers in relation to the same, which may be in my possession at the time -of my decease, or which may thereafter properly belong to me ; and I charge my executors hereinafter appointed to demand, and if necessary and not detrimental to" the interests of my heirs named herein, to enforce the. collection of whatever may be due to me from said estate, and to dispose of the s.ime as herein directed.
    1 ‘ 6th. And at the decease of my said wife, I direct that said property, or the amount collected thereon, or so much thereof as shall be then remaining in the possession or under the control of -my. said wife, shall be divided among my said children, to wit: [inaming them].
    
    
      Questions.
    The questions submitted to the court upon this case were as follows:
    I. Did the fee of the premises pass under the will of Samuel Dnnshee to his executors—to his four sons living at the time of his decease—or to his heirs at law (which latter would include his granddaughter) ?
    II. If the fee passed to the execute is, have they a good and sufficient power of sale under the will, so that their deed alone will vest a perfect title in their grantee; and is the power of sale contained in the will operative, upon the facts as submitted ?
    III. If the fee passed to the sons or heirs of Samuel Dnnshee, did the share, interest and estate of John Dunshee, one of said sons and heirs in said premises, pass under the said John’s will to his executors, to his widow Catharine, or to his children thereby named ?
    
      George S. and John H. Stitt, for the plaintiff.
    I. Under the will of Samuel Dnnshee, the executors took all his estate, real and personal, with a power to dispose of, sell the same, and convert the same into money. 1. The power of sale is expressly given in the second and fourth clauses. The second is a devise to the executors of his property, to be disposed of” in a certain way; and by the fourth, after his decease, if he should survive his wife, they are directed to sell the real and personal estate. And in the seventh clause, the executors are directed to distribute the balance of the estate in their hands tC equally to” his four sons. The second clause intends not to pay merely funeral expenses and d.ebts, but a disposition or sale and conversion into money to pay those and also the legacies in the fifth and sixth clauses, and to distribute and divide the balance' as provided in the seventh clause. In the fourth clause, the direction that if he should survive his wife they are to -sell within six months after his death, does not make their failure to sell within six months destroy their power of sale. Then* power is not conditioned on being performed wjthin that time. 3. The distribution provided in the seventh clause could not be made unless the estate should be converted into money, and a balance adj usted by the addition to the balance, of the bond held against John and the note against William K; A sale was necessary in order to carry out the provisions of the will. The will of Samuel Dunshee makes a clear, absolute devise of all his property to his executors in trust. (1.) To pay debts. (3.) To pay one-third of the net income to the widow during her widowhood. (3.) To pay certain legacies. (4.) To divide the balance in their hands, with the addition thereto of the bond of John and the note of William K., among his four sons, in the way marked out in the seventh, clause (Meakings v. Cromwell, 5 N. Y. [1 Seld.], 136).
    II. The will of John, Dunshee (clause 5) gives to his wife his interest in his father’s estate. The sixth clause is void, because it attempts to create a remainder, after giving his wife the whole estate, and allowing her to use and consume the same (1 Jarman on Wills, 332).
    III. It must," therefore, follow: 1. That the executors of Samuel Dunshee’swill have, full power to convey the'land in question; or, 3. If they have not, his three surviving sons and the widow of John Dunshee can convey this property to the defendant, and thereby give • him a good and valid title thereto.
    
      Joseph C. Levi, for the defendant.
    I. On the death of Samuel Dunshee, the fee vested, notwithstanding the will, in his heirs at law. 1. The testator obviously intended to. pass the fee to his executors in trust, mainly for the benefit of the widow during her widowhood. 3. The only power of sale contained in the will is contingent, dependent on an event which never happened (Richardson v. Sharpe, 29 Barb., 222). 3. ISTo other disposition of the real estate is made. The direction in the seventh clause to distribute his estate to his sons, obviously refers to personal property, the proceeds of sales of real estate. 4. The power of sale thus being inoperative, and no other devise made, the real estate passed to the heirs.
    II. It was evidently the intention of John Dunshee in his will to give his wife only a life estate, and his four children therein named a vested remainder in fee. 1. This hypothesis is consistent with every part of the will. He was evidently bent on ultimately possessing li'is children of his whole estate. If be had intended to give the whole to his wife, he would not have been so solicitous about the equal division among his children by name; and he forbids enforcing the collection of the very property in question, left in the first instance to the wife, if the same should be “ detrimental to the interests of my heirs named herein,” showing that the interests of his wife were subordinate in his mind to those of his children. 2. This intention is further manifest from the similarity of the fifth and sixth clauses (which affect the real estate) to the second, third and fourth clauses (which relate only to personal property). The fifth clause is obviously intended to be uniform with the third, and it is so, lacking only the important words “ the use and enjoyment during her life.” The court may and will supply these words in the second line of the fifth clause, which would thereby fix the extent and duration of the wife’s interest in the real estate, as the same words in the third' clause do in the personal property. 3. This intention is still further manifest by the distinction in the will between perishable and imperishable property, (a.) The wife is not to have the absolute disposal of even all the personal property. (5.) The second clause gives her all the perishable personal property. (c.) Then comes a distinct clause-giving her only “the use and enjoyment, during her life,” of all the imperishable personal property, {cl.) The words “or so much as shall remain thereof,” in the fourth clause, obviously refer only to the perishable- property bequeathed in the second clause, (e.) The same distinction is intended to be made in the sixtli clause. 4. It'is a rule in the construction of wills, particularly of those inartificially and obscurely drawn, to. advert, in order to discover the intention of' the testator, to his situation at the time of making the will, as to the number of his children, the different kinds of property of which he was seized, &c. (6 Cruise Dig., 158). (a.) Applying this rule to the case in point, what do we find % Taking John Dunshee’s will by itself, it certainly does not look like'an intended will of real estate. (1.) The word devise is not used. (2.) The fifth and sixth clauses would read equally well for a bequest exclusively of personal property. (5.) Taking the dates, and reading the two wills together, it is evident that John Dunshee, in his own will, did not have real estate in his mind. (1.) Prima facie, his father had provided for an equitable conversion of 'all his real into personal estate, and a division of the proceeds among his sons. (2.) This division was to be made on the mother’s death. She had died but a few years previous, and the real estate was wholly or partly unsold. (3.) If he had meant real estate, he would not have spoken of “ enforcing the collection of whatever might be due to him,” or have referred to such estate, as “ the amount collected thereon, or so much thereof as shall be then remaining.” These last words refer only to the proceeds of sales of his father’s land—not the land itself (Lynes v. Townsend, 33 N. Y., 558). 5. An intent to exclude the heir must be clear and manifest, and must be collected from the words, not from conjecture. It is the policy of the law (after providing for the widow’s dower), as to the bulk of the estate, and as between the widow and the children or heirs, to favor the latter. They should not be excluded from their father’s estate, unless the intent so to exclude them is clear and beyond doubt. The provisions of the Revised Statutes declaring the rights of after born unprovided issue are an instance of this (Moone v. Heaseman, Willes, 141; Hay v. Earl of Coventry, 3 T. R.. 83; Moore v. Denn, 2 Bos. & P., 247; 5 Abb. N. Y. Dig., Will; Doe v. Dring, 2 Mau. & S., 448; Doe v. Wilkinson, 2 D. & E., 209; 33 N. Y., 558, supra, and cases there cited). f
    
    III. But apart from the question of intent, the will itself follows the principles herein enunciated. 1. There is no particular ambiguity; it agrees in all its parts. 2. The sixth clause should be read, “And at the decease of my said wife, I direct that said property . . . shall be divided equally,” &c., leaving out the intermediate words, which obviously refer only to perishable or personal property (Pond v. Bergh, 10 Paige, 140). 3. A devise to a person, in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event the estate thus given shall go to another person, are not repugnant. The latter clause controls the former, and the generaljvords of conveyance are to be understood in a qualified and not in an absolute sense (Hatfield v. Sneden, 42 Barb., 615; Jarman's Rules, 5, 6, 10, 19, 21, cifcéd in 1 Redf., 425.
   By the Court.—Sutherland, J.

Notwithstandzing the devise and bequest, in words, by the second clause of the will of Samuel Dunshee to his executors and executrix, of all his estate, real and personal, his real estate, on his death, vested in his four sons, John, William K., James and Henry W., subject to the gift, by the third clause, to his wife, of one-third of the income of his estate during her widowhood, and this gift, as to his real estate, was, in substance and effect, a devise of one-third of his real estate to her during her widowhood. The power of sale given to the executors by the fourth clause of the will, must be viewed as a power in trust merely.

It is not only contingent upon the event of the testator surviving his wife (which he did not), but its exercise is also limited to six months after the decease of the testator.

Had the testator survived his wife, his executors having failed to exercise the power of sale within the time limited by the testator, I do not see how they could -effectively exercise it after that period (see Richardson v. Sharp, 29 Barb., 222).

On the facts stated, I am of the opinion that the executors of Samuel Dunshee cannot give or convey a good or perfect title to the premises in question.

* I think that, under the will of John Dunshee, his widow took a life estate, and his children, named in the will, a vested remainder in fee in all the real estate of which he died seized, including, of course, the real estate, or the estate or interest in the real estate, which he took and had as heir at law of his father Samuel, or under or by his will.

There should be judgment on the facts submitted, according to the foregoing views. 
      
       Present, Ingraham, P. J., and Cardozo and Sutherland, JJ.
     