
    Rachel Weinstein, Appellant, v. Joseph Weber, Respondent.
    
      Will—a power of sale, when not an absolute beneficial power — when it is riot executed by, an instrument which may operate on an individual interest of the grantor'.
    
    The will of a testator, admitted to probate as a will of personal property only, provided:
    
      “First, I give, devise and bequeath unto my friend, Walli Goetz, all my furniture and household articles, and also one-third of the rest, residue and remainder of my estate, real as well as personal, to have and to hold the same unto her during her lifetime, and after her death to be divided in such a manner that two-thirds thereof shall go to her children and one-third thereof to my children, I expressly provide, however, that my said friend shall have possession of the property so given, devised or bequeathed to her, and be entirely free in the administration of the same, with full power to sell and dispose of the same, or any part thereof, and shall not be required to give any security whatsoever.
    “ Secondly. I give, devise and bequeath the remaining two-thirds of all the .rest, residue and remainder of my property, real as well as personal, to my children to be divided between them, share and share alike. And I hereby provide that the property hereby devised or bequeathed to my children shall be converted, into money.”
    After executing the will the testator married the said Walli Goetz, and died leaving her surviving him.
    Thereaftér his executors executed a deed purporting to convey the testator’s entire interest in certain real property on which deed was indorsed an instrument executed by the said Walli Goetz reciting, ‘ ‘ Know all men by these presents that I, Walli Brown, widow of Adolphus Brown, deceased, in consideration of fifteen hundred dollars to me paid by the within-named Felix Brown, do grant, remise, release and quit-claim unto the said Felix Brown all my right, title and interest and dower in and to the within described premises,” which was followed by a certificate of acknowledgment referring to her as the person “ who executed the foregoing release of dower.”
    
      Meld, that such instrument was not an execution of the power of sale, given to Walli Goetz, of the one-third of the real property in which she was given a life estate, but was a conveyance of such life estate in the one-third and of her dower in the remaining two-thirds devised to the testator’s children;
    That the power given to the said Walli Goetz was not an absolute, beneficial power to sell and dispose, for her own benefit, of the one-third interest in which she was given a life estate.
    
      Bemble, that if the donee of a power to sell land has an interest therein in his own right, apart from the power, a deed executed by him containing no reference to the power will convey only the donee’s individual interest.
    Appeal by the plaintiff, Rachel Weinstein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.
    
      Benjamin If. Gardozo, for the appellant.
    
      George M. 8. 8chulz, for the respondent.
   Hatch, J.:

This action was brought to compel the specific performance of a written agreement for the sale of real property, or for the recovery of the sum paid thereon by the vendee, with damages, the vendee claiming that the vendor’s title to the premises is defective. The premises in question were formerly owned by Felix and Adolphus Brown as tenants in common, and it is admitted that their title was good and marketable. Adolphus Brown, a widower, having three children, made a will which contained the following provisions :

“First: — I give, devise and bequeath unto my friend, Walli •Goetz, all my furniture and household articles, and also one-third of the rest, residue and remainder of my estate, real as well as personal, to have and to hold the same unto her during her lifetime, and after her death to be divided in such a manner that two-thirds thereof shall go to her children, and one-third thereof to my children.— I expressly provide, however, that my said friend shall have possession of the property so given, devised or bequeathed to her, and be entirely free in the administration of the same, with full power to sell and dispose of the same, or any part thereof, and shall not be required to give any security whatsoever.
Secondly: — I give, devise and bequeath the-remaining two-thirds of all the rest, residue and remainder of my property, real as well as personal, to my children to be divided between them, share and share alike. And I hereby provide that the property hereby devised or bequeathed to my children shall be converted into money, and the share of each child be safely invested in good security during his or her minority, and the interest or income, derived therefrom be applied to the education and maintenance of my said children until they become of age respectively.”

After the execution of this will, Adolphus Brown, the testator, intermarried with the legatee and devisee, Walli Goetz, and died in the city of New York on the 10th of March, 1875, leaving him surviving Walli Goetz Brown, his wife, his three children by the forme: marriage, Rosa Brown, Augusta ■ Brown and Catherine Brown, and his stepchildren, Julia Goetz and Max Goetz, the children of Walli Goetz mentioned in his will. The will of Adolphus Brown was duly admitted to probate in the county of New York as a will of personal property only, and the executors therein named, Philip Michael, John F. Miller and Felix Brown, qualified as such and entered upon the discharge- of their duties. Thereafter two of the executors, Philip Michael and John F. Miller, by deed dated May 19, 18*76, assumed to convey the whole of the interest of their testator in the premises to the co-executor, Felix Brown, who was also the cotenant with his deceased brother. On the back of this deed was the following:

Know all men by these presents that I, Walli Brown, widow of Adolphus Brown, deceased, in consideration of Fifteen hundred dollars to me paid by the within-named Felix Brown, do grant, remise, release and quitclaim unto the said Felix Brown all my right, title and interest, and dower in and to the within described premises.

In witness whereof I have hereunto set my hand and seal this day of June, in the year one thousand eight hundred seventy-six.

“ [l. s.] WALLI BROWN.

“ Signed; sealed and delivered in presence of Louis A- Wagner.”

Then follows an acknowledgment in which the notary certifies, after the formal parts, as follows: that “ Walli Brown, Widow, to me known and known to me to be the person described in, and who executed the foregoing release of dower, and to me acknowledged that she executed the same.”

These two instruments were recorded in the office of the register of the city and county of New York on the 17th day of June, 1876. After the delivery of these deeds, and in 1880, the three children of Adolphus Brown quitclaimed all their right, title and interest in the property to Felix Brown, and on September 13, 1884, Felix Brown and Ernestine, his wife, conveyed the property to the defendant Joseph Weber. "Walli Goetz Brown is now deceased; Max Goetz, one of her said children by a former marriage, is deceased, leaving a wife and daughter, Julia, who is still an infant. Julia Goetz, the other child of Walli Goetz by the former marriage, subsequent to the death of the testator, married one Robert Bain, and in January, 1899, she quitclaimed to this defendant her interest in the property.

Under these circumstances the plaintiff contends that there is a defect in the defendant’s title which relieves her from accepting it and entitled her to recover the cash payments made on the contract on the ground that there is an outstanding interest in the property, the interests of the wife and daughter of Max Goetz in the one-third devised to Walli Goetz for life, with remainder over to her children and the children of testator — which the defendant is unable to convey. While the defendant contends that, by the conveyances from the two executors of Adolphus Brown from his children and from Walli Brown to Felix Brown, his grantor, a perfect marketable title to the whole of said premises is vested in her. The determination of the question presented depends upon the legal construction to be put upon the will and the instrument executed .by Walli Goetz Brown, the widow of testator, to Felix Brown. The defendant contends that this was a valid execution of the power of sale as to the one-third of the real estate devised to her for life, and passed the interests of herself and the remaindermen; while the plaintiff maintains that such instrument only passed the dower interest of Walli Brown in two-thirds and her life estate in one-third, leaving the title to the one-third vested in the children of the testator and in her daughter Julia Bain and her granddaughter Julia Goetz, daughter of Max, subject to the dower of the widow of Max in his undivided interest. Was the instrument executed by Walli Brown, by which she granted, remised, released and quitclaimed unto Felix Brown all her right, title and interest and dower in and to the 'premises in question, a valid execution of the power of sale contained in the will ?

The statute provides that “ an instrument executed by the grantee of a power conveying an estate or creating a charge, which he would have no right to convey or create except by virtue .of the power, shall be deemed a valid execution of the power, although the power be not recited or referred to therein.” (Beal Prop. Law [Laws of 1896, chap. 547], § 155.) The respondent seems to rely upon the ' provisions of section 129 of the Beal Property Law, and contends that under that section the provisions of the will must be construed not only as giving Walli Goetz a life estate in one-third of the testator’s undivided half interest in the premises, but, in respect to the rights of purchasers, an absolute beneficial power to dispose of or sell, which changed the estate into a fee.

If the provisions of the will in question could be construed as giving to Walli Goetz an absolute beneficial power to sell and dis-^ pose of the property devised for her own benefit, there would be force in the contention that the instrument executed by her was a valid execution of the power. But we are of the opinion that the will cannot be so construed as to reach this result. The Real Property Law, which re-enacts in substance the provisions of the Revised Statutes upon this subject, provides that such powers as are authorized by statute are general or special, and beneficial or in trust (§ 113); that a general or special power is beneficial, where no person, other than the grantee, has, by the term of its creation, any interest in its execution (§ 116); that a general power is in trust, where any person or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from its execution (§ 117).

It is plain that, under these provisions of law, in order to reach the result insisted upon by the respondent, it must be found that the power given to Walli Goetz is “not accompanied by a trust,” but is both general and beneficial. There is nothing in the language of the will which indicates that Mrs. Brown’s interest in the proceeds of the sale of the premises was to be greater than her interest in the land itself. There is no language which indicates that it was the intention of the testator that she should have the power to sell and dispose of the property for her own benefit. The proceeds when received were subject to the same limitations as the property devised, and the estate of Mrs. Brown in the proceeds was, therefore, that of a life tenant only; the proceeds took the place of the realty, and she was entitled to the interest upon them during her life as life tenant. The remainder was. vested in her children and in the children of the testator; the power was accompanied by a trust (Matter of Blauvelt, 131 N. Y. 249), and there was no absolute beneficial power of disposal.

As there is nothing in the instrument executed by Walli Brown indicating that it was made and delivered in execution of the power of sale contained in the will, it must be held that such instrument was not an execution of the power, but only a conveyance of her dower in the two-thirds and of her life estate in the one-third devised to her.

The Court of Appeals in construing 1 Revised Statutes, 737, section 124 (Real Prop. Law, § 155), has held that such statute was not intended to change the then existing rules; that “‘if the donee .of a power to sell land has also an interest in his own right in the same land, his deed of the land, making no reference to the power, will convey only his own interest, for there is a subject-matter for the deed to operate upon, excluding his power.’ ” (Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324.) It is there said (p. 329): “ The rule was founded in reason and good sense, and was intended to provide that whenever a single power exists, under which a grantor may convey or mortgage real estate; his conveyance is attributable to the exercise of the power actually possessed by him, but that whenever, in addition to a power, he is also invested with other independent interests or powers, whether legal or equitable, with respect to the same property under the authority of either of which he may lawfully act, the rule of the statute should not apply.”

There can be no question but that the grantor, Walli Brown in this case, comes within this rule, and our decision is controlled by the authority of the case cited. Aside from the power she had a consummate right of dower in an undivided two-thirds of the premises, of which she could enforce admeasurement, and a life estate in the other one-third. It is also held in Mutual Life Ins. Co. v. Shipnwm (supra) that a dower right, although hot admeasured, is an absolute right, which is assignable. We are thus brought clearly within the rule enunciated by the Court of Appeals, from which it ■ follows that the judgment appealed from should be reversed and a new trial’ ordered, with costs to the appellant, to abide the event.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, J.J., concurred.

Judgment reversed, new trial ordered,, costs to appellant to abide event.  