
    William A. Burnham and Henry W. Munroe, as Executors, etc., of Mary A. H. Munroe, Deceased, Plaintiffs, v. William Hubbard White, Defendant.
    First Department,
    February 8, 1907.
    Will — implied power to sell real estate— when title offered by executors marketable. •
    It is a geneial rule that a power of sale will be.implied where the manifest intent of the testator requires that real estate should be sold and converted into money in order to carry out the provisions of the will. The application of the rule depends upon the particular provisions of the will in question,
    When a testatrix in creating a trust for the benefit of children living, .'at her death, or for the issue of those who have- predeceased' her, provides that the executors shall “pay over” to the beneficiaries their “part or portion”-of the estate, and speaks of the “portions, or parts of soph sums set apart” for the use of the "beneficiaries, and uniformly throughout the clauses making disposition of the property uses the words “pay over” the portions “of'said fund,” and provides that “upon all sales” which may be made by the executors the purchasers shall not he answerable for a misapplication of the proceeds by the executors, it is clear that the testatrix intended that her estate be converted into money, and' the executors have an implied power of sale.
    The implied power of sale is so clear as to impose no cloud upon the title, and a vendee will be decreed to accept the deed tendered by the executors.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Frederic D. Philips,. for the plaintiffs.
    
      'Harold Swam, for the defendant.
   Scott, J.:

This controversy comes before the court upon an agreed statement of facts, and involves the question whether or not the will of Mary A. H. Munroe, deceased, confers upon. her executors an/ implied power to sell her real estate, for it is'obvious a'nd conceded that the will contains no express power of sale. Upon the determination of that question depends the'-other, which is whether or not the defendant shall he required to accept the deed.tendered him by the plaintiffs in fulfillment of their contract to convey to him. a piece of real estate in the city of Mew York. The general ride is not questioned that a power of sale will' be implied when the manifest intent of the, -testator requires that the real estate should be sold and converted into money in order to carry into effect the provisions óf the will. Although the question has been presented and dis-, cussed in many cases, no real advantage is to'he derived from citing and'comparing them, because in each case the application of the " established rule must depend upon the particular provisions of the will under examination.

Mrs.- Munroe’s will gives all of her estate, real and personal, to plaintiffs, as trustees, with instructions to divide the same into.as many equal portions or parts as there may be children of hers living at her decease, or who, having predeceased her," shall have left lawful issue remaining at the time of her decease, setting apart for such issue of each child so deceased the share or shares to which its or their parents would have been entitled if living; ' The disposition of the several shares by the trustees is thus provided for: '“ That they shall pap over to each of my sons, other than my son John Munroe, his part or portion to be held in each case by him, his heirs, executors, administrators and assigns to his and their use and behoof forever.”

The part or portion of my said son John Munroe, my trustees under this my will shall hold and manage in such manner as they shall judge beneficial for him * * * 1

“ The portions or parte of such sums set apart for the use and benefit of my daughters, my trustees under this my will shall hold and manage in such manner as they shall judge beneficial for my said daughters. * And upon the death of each'of nay said daughters my said trustees shall pay over in each case the portion or part of said fund then held by them for the benefit of such daughter so dying to such person or persons as my said daughter so dying may by her last will and testament in writing direct and appoint to .receive the same, and in case of failure of any daughter so to direct and appoint, then my said trustees shall pay over such portion or part of said fund held by them * * *.”

• In case of .issue of testatrix’s children who predecease her, the direction is that when such issue shall arrive at the age of twenty-one years the trustees “shall pay over to such grandchild its proportion of all the fund held by my trustees in trust foi’ the benefit of such lawful issue so surviving at said age.”

Finally, in the 4th clause of the will is to be found this significant paragraph : “ Upon dll sales which' may be made by me (sie) trustees I will and declare that the receipts of my trustees shall exempt the purchaser or purchasers from being answerable for the misapplication or non-application of the purchase money, or being concerned to see the application thereof.”

An examination and analysis of the will discloses, as the clear, controlling scheme adopted by the testator, that the estate shall be divided into separate parts or portions, one for each child, and throughout the instrument she uses words which are aptly used, if her intention is found to be that her estate shall be converted into money, but are in many instances quite inconsistent with the idea that any part of it should be retained in the. form of real estate. Where she provides that- certain of her sons'shall take their shares ‘outright her direction is that her trustees shall “pay over” to each son his ■ part or portion. These words are peculiarly applicable where the subject of transfer is money, and would be entirely inapplicable to a transfer or conveyance of real estate. So in case of a daughter who dies the direction is that the trustees shall “ pay over ” the portion or part of said “fund ” then held by them for the benefit of the daughter, and a similar provisionis made with respect to grandchildren, to whom, on the attainment of their majority, are to be “paid over” their respective proportions of “all the fund” then held by the trustees for their benefit. •'. •

It is thus, found that throughout the entire will the part-or portion allotted to a beneficiary is designated as a “fund,” and whenever the trustees are to transfer any part'of the estate to a beneficiary the invariable mandate is to “pay over.” The will is conventional . in form, is 'couched in well-chosen language, and seems to be an instrument to which may well be applied that rule of testamentary-construction which requires that words shall be taken in their primary and customary sense. A “fund,”, as generally understood and defined, means a sum of money,' and as has already been said we commonly use the words “ pay over ” with reference to money, and never as the equivalent of the conveyance or transfer of real estate.. We thus find that'tile will uniformly uses words which are applicable to money, and seldom or never uses words which are applicable to the transfer of real estate. The conclusion is irresistible that it was the intention of the testatrix that her estate should be converted into money, or its equivalent in personal property, and that it was no -part of her intention that so" much of her estate as consisted of real estate should be retained as such.

It follows that to carry out. this intention the real estate must be sold, and an implied power of sale, therefore, rests in the trustees. We do not consider that the existence-of this implied ¡lower is involved in any such doubt as would impose upon a purchaser a clouded title, or one which is unmarketable. '

The plaintiffs ave entitled to judgment that the defendant perform his contract of purchase.

Patterson, P. .J., McLaughlin, Hohghton and Lambert, JJ., concurred.

Judgment-ordered for plaintiffs. Settle order on notice.  