
    Frank S. Bradford et al., Ex’rs, Pl’ffs, v. William Mogk, Def't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Wills—Annuities—Charge on real estate.
    Plaintiff’s testator, by Ms will, gave substantially all Ms estate to Ms executors in trust to dispose of the income as therein provided, and gave-them full power of sale; he then gave various annuities and as to them provided as follows: “ I make each and every of the same a first charge, upon my estate in whose hands soever it may come.” Held, that the annuities were not a charge on the real estate; that the lien attached to the interest of testator in the property and became a specific charge on none.
    Submission of controversy without action.
    
      W. W. Buckley, for pl’ffs; Max Brill, for def’t.
   Dykman, J.

The defendant in this action entered into a written agreement with the plaintiffs, who are the executors of the last will and testament of Samuel J. Hunt, deceased, for the purchase of a lot of land in the city of Brooklyn, of which their testator died seized and possessed.

Becoming distrustful and fearful respecting the power of the executors to convey the premises, the defendant refused to execute his agreement and take the conveyance, and as the executors insisted upon his performance, the controversy has been submitted to us without action, and so we have the case.

Obviously the solution of the question presented depends upon the construction to be given to the last will and testament of Samuel J. Hunt, deceased, which is long and complicated. Yet the scheme of the will and the design of the testator are not difficult of ascertainment.

By the terms of the will all the estate of the testator, both real and personal, with some exceptions unimportant here, is given to the executors and trustees named therein, or such of them as qualified, and to the survivor and survivors of them, in trust, to control and manage the estate, collect the rents, issues and profits during the life of his daughter and grandson, and to dispose of the income in the manner directed by the will. The executors are invested with the'most ample power to convey in fee simple at any time, at public or private sale, of any and all of the real estate of the testator, in their discretion.

Thus far no difficulty is encountered, but the uncertainty and the controversy arises over the ninth clause of the will. By the third, fourth, fifth, sixth, seventh and eighth clauses of the will the testator provided for the payment of annuities to several persons out of the income to be derived from his estate, and then he inserted this provision: “ Hine. For each and every of the foregoing annuities the reckonable year shall begin at the date of my decease, and I make each and every of the same a first charge upon my estate into whose hands soever it may come.”

This is the clause which creates the apprehension of danger, and which leads to the contention of the defendant that all the annuities are charged upon the estate, and that such charge creates an incumbrance which will rest upon the property “into whose hands soever it may come,” and we must see if it does.

Throughout his entire will the testator uses the term estate, and from the manner and connection in which the term is constantly employed it must be held to refer to his title and not to the corpus of the property. ■ Such is the usual rule of application of the term estate unless it be controlled or restricted by other portions of the instrument

“ An estate in lands, tenements and hereditaments signifies such interest as the tenant hath therein. * * * It is called in Latin status, it signifies the condition or circumstance in which the owner stands with regard to his property.” 2 Black. Com., 108. Such is also the natural and primary signification of the term.

This will, like all others, must receive a construction which will impart force and validity to all its provisions if it be susceptible of such interpretation.

If the contention of the defendant presents the true exposition of the testator’s intention, then he has defeated his important design to clothe his executors with an unrestricted and unlimited power of sale of all of his estate. Because if the annuities rest upon all the property as a charge and incumbrance, then the executors can make no disposition of any portion of the estate without the consent of the annuitants, who may or may not be capable of giving such consent or may withhold the same at their pleasure.

Such a construction would not only embarrass the executors in the administration of the trust created by the will, but would substantially nullify many of its portions.

We cannot concur m such interpretation, especially as it is unnecessary and not required even by the language of the will creating the charge.

If we impart to the term estate as employed in the ninth clause of the will its natural import and meaning, then it attaches the lien of the annuities to the interest which the testator had in all of his property, and became a specific charge upon none.

Such a construction renders the entire will harmonious and capable of execution in accordance with the scheme and scope of the will and the evident design of the testator.

The extensive powers bestowed upon the executors in respect to the management of the estate and the disposition of the property were placed in the hands of the executors for the purpose in part of providing and continuing the very annuities charged upon the estate, and if they cannot exercise the power of sale that very object will be defeated. This is not like the case of lands devised to a beneficiary charged with the payment of a legacy or annuity, because here the property is placed in the hands of the executors in trust to subserve a particular purpose plainly contemplated by the testator and provided for by the will.

The plaintiffs must have judgment to compel the defendant to perform and carry out his contract, with costs.

Barnard, P. J., and Pratt, J., concur.  