
    HARRY S. HOUSE and HOWARD E. KING, Surviving Executors, etc., Plaintiffs v. SIDNEY RAYMOND and another, Defendants.
    
      1Vill—Life estate—Title to real property when it passes to executors—Effect of life estate in the construction of a clause—restand residue of estate —Power of sale— discretionary— death of one of the appointees of the power.
    
    Plaintiffs’ testator by his will devised and bequeathed the use of a homestead and all the personal property therein to his wife, and'also gave “unto her during her natural life the use of $20,000.” Meld, that the widow took only a life estate in the homestead and in the personal property therein.
    The will further provided: “I hereby give, etc., unto my executors all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts: ” then followed directions that the several parts be kept invested, and the income thereof paid over to certain beneficiaries in the will mentioned. Meld, that the effect of the foregoing provisions was to give to the executors for the purposes of the trust, all the testator’s property (real and personal) not required to pay legacies, subject to the provisions made for his wife; and that the executors were to invest the same as far as it was capable of investment, and divide and apply the income for the benefit of the children and grandchildren during life.
    The testator authorized his executors to sell his real estate whenever they and his wife (his executrix), unanimously thought that such sale would be advantageous to her estate. Meld, that, after the decease of his wife, his surviving executors were authorized to sell the real property.
    Case agreed upon, submitting controversy without action, pursuant to section 72 of the Code of Procedure.
    Benjamin Raymond died on the 17th day of November, 1870, at Malone, Franklin county, in this State, having previously thereto duly made his last will and testament, bearing date the 24th day of May, 1870, which was afterward duly proved and admitted to probate as a will of real and personal estate.
    At the time of his death the said Benjamin Raymond had three parcels of land in Malone village, one a small lot upon which was a small building called his office; also a small lot upon which was a cheap dwelling-house, let to a tenant; and a lot of nearly an acre, upon which were the dwelling-house in which he resided, and the usual outbuildings, which was called his homestead. He owned' no other real property. Neither of said parcels of land could be divided into seven or even five parts without the total destruction of its value. He left a considerable personal property, consisting of money, bonds and mortgages, stocks, promissory notes, and other securities, not referred to or disposed of in the provisions of said last will and testament, preceding the sixth paragraph thereof.
    He left him surviving his widow, Jane L. Raymond; two children, Sidney Raymond and Augusta E. Flanders, the above named defendants; and three grandchildren, Benjamin E. Raymond, son of the former, and Wallace R. Flanders and Ella J. Flanders, children of the latter, all of whom are of age. He left no other children or grandchildren, and these are all now living.
    The first paragraph of the will reads as follows:
    “ 1st. I hereby give, devise and bequeath unto my beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except my safe and money, bonds, notes, contracts, mortgages and obligations of every nature and description. I also give, devise, and bequeath unto her during her natural life the use of $20,000; such sum to he set apart for that purpose, out of the best securities I may have at my decease, by my executors; and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors to pay the same to her.”
    By the second, third, fourth, and fifth paragraphs of this will, he gave certain legacies in money to the Malone Cemetery Association and his children and grandchildren.
    
      The sixth paragraph of his will reads as follows: ■
    “ 6th. I hereby give, devise, and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts; two of which said parts my executors shall keep invested for the use and benefit of my son Sidney ; two they shall keep invested for the benefit of my daughter Augusta E.; one of said parts for each of my grandchildren, Wallace, Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live.”
    Then follow the seventh and eighth paragraphs of the said will, which contain nothing material to the questions in controversy.
    The will then proceeds:
    
      “ 9th. It is my wish, and I hereby direct my executors, to allow my son Sidney, if he may desire it, to have the use of my office building and land attached thereto, by his paying the taxes and insurance thereon, and seventy dollars annually as rent, so long as he may choose to occupy or use the same.”
    “ 10th. I hereby order and direct that any part or portion of the $20,000 devised to my wife Jane, which shall not have been disposed of by her at her decease, to be added to the parts or portions sixthly above described, and to be divided and disposed of in precisely the same manner as therein and thereafter stated.” “ llthi I hereby authorize and empower my executors hereinafter named to sell and dispose of any and all my real estate, and good conveyances make thereof, whenever they and my wife shall unanimously think that such sale will be advantageous to my estate, and to that end I hereby invest them, my said executors, with the title thereto, and with the full power and authority to make such conveyance.”
    Lastly, the said testator appointed his said wife, Jane L. Raymond, executrix, and his friends, Harry S. House and Howard E. King, the executors, of his said last will and testament, and as such trustees of the estate, as thereinbefore stated.
    
      The testator’s widow duly qualified and acted as executrix and trustee. On the 22d day of July, 1874, she died, without having used or disposed of any part of the principal of the said sum of $20,000, directed by the said first paragraph of said will to be set apart for her use during her natural life.
    The said Sidney Raymond has hitherto, since the decease of said testator, occupied and used the office and office lot upon the terms and conditions prescribed in the ninth paragraph of the will. No debts of the testator were unpaid at the time of decease of said widow.
    
      Horace A. Taylor, for the plaintiffs.
    
      Joseph jR. Flanders, for the defendants.
   Daniels, J.:

The first point requiring consideration in the disposition of this case, is, whether the testator’s widow took the personal property in the homestead absolutely, or only for the period of her natural life; and that must be determined from what is expressed by the first paragraph of the will. That paragraph, so far as it is now material to refer to it, is as follows: “I hereby give, devise and bequeath unto my beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except,” etc.

After excepting certain securities, money, and the safe containing them, he proceeded by adding: “I also give, devise and bequeath unto her during her natural life, the use of $20,000,” * * * “ and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors- to pay the same to her.” The entire scope and design of these provisions seem to have been to provide a suitable support and maintenance for his wife during her natural life, limiting the benefit of the bequests and devises for her to that period of time. It appears to have been the testator’s design to provide amply for that object while she lived, and then to have the property, unexhausted in accomplishing it, returned to the body of his estate at the expiration of that period. And the terms made use of in the first clause were judiciously selected to secure that result. He did not devise her the use of his homestead during life, and bequeath absolutely to her the personal property thereon at the period of his decease, subject to the exception afterward declared, but simply the use of both. That term was employed to qualify the interest given her in the personal property, as well as in the homestead itself. It was of such a nature as to render the use of the homestead comfortable and convenient, and was undoubtedly made to accompany it for that reason. Other terms would be required to be added to the clause in order to give her any greater interest than that in the personal property referred to.

It is next claimed that the executors took no title to the testator’s real estate, because he directed them to divide and invest the property left by him, for the benefit of his children and grandchildren. But while that was the direction which was given, a construction based upon that circumstance, which would exclude the realty, would be directly in conflict with an express devise of the real estate, made in the same subdivision of the will. Upon that subject the testator declared: I hereby give, devise and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate, and personal estate, in trust nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts, two of which said parts my executors shall keep invested for the use and benefit of my son Sidney; two they shall keep invested for the benefit of my daughter Augusta E.; one of said parts for each of my grandchildren, Wallace,.Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live.” This was a valid trust, under the statutes of this State, and was in terms made so extended as to include all the testator’s property, not previously disposed of.

But it is contended that such could not have been the intention of the testator, because the real estate, particularly the homestead devised to his wife for life, could not be divided and invested as it was afterward directed his property should be; and that the proceeds to be divided, being denominated “ income,” did not properly include the profits of real estate. Besides that, the unexpended residue of the $20,000, was directed to be added to the portions of the estate to be invested and divided. And because the remainder of the homestead estate was not included in the same direction, it is claimed that this omission is evidence that it was not the testator’s purpose to include it. But neither nor all of these reasons would justify the exclusion of the real estate, in view of the positive direction contained in the will to the contrary. The testator, upon this subject, used clear and comprehensive language, declaring it to be his design, for the purposes of the trust, to devise “all the rest, residue and remainder” of his real, as well as his personal estate to the executors. And that included the remainder of the estate in the homestead, remaining after the life estate created for his wife, as well as the other two pieces of property of that nature which he owned at the time of his decease, and the personal property bequeathed for life with the homestead. These terms were sufficient for that purpose. And, as long as that was the nature of them, a repetition of the purpose expressed by them was not afterward essential in order to render them effectual. The eonstniction which has been contended for, would result in excluding the direction concerning the rest, residue and remainder of the real estate entirely from the will. And that it is the duty of the court to avoid, by harmonizing the directions, relied upon as inconsistent with the design of including that species of property, so that they may all be maintained together. And that can very well be done by limiting the directions given to the executors to invest, to the personal estate, which was all that in its nature was susceptible of investment. For that reason the testator probably so intended, though the intention was not clearly expressed in words. It is, however, to be inferred from the 'fact that both real and personal property was given in trust to the executors, and from the further circumstance that he appears to have designed that his children and grandchildren should, by means of the trust, be secured the entire benefit of all his property, so far as it was not specifically devised for the enjoyment aud support of his wife and the payment of certain legacies. The income directed to be so applied is entirely consistent with this conclusion, for the terms used to describe it are broad enough to include the rents and profits of the real estate, as well as the interest derived from the investment of the personal property. It was claimed that the direction to allow the testator’s son, Sidney, to have the use of the office and the land connected with it, was opposed to such a construction of the sixth paragraph of the will. But as he was required to pay the executors an annual rent of seventy dollars for such use and occupancy, no such effect can be attributable to it; for its payment enabled them to make precisely such a division of the proceeds or income of the property as they were required to for the purpose of executing the trust previously declared. The effect of the will was to devise and bequeath to the executors, for the purposes of the trust, all the testator’s property not required to pay the legacies, subject to the provision made for his wife, which they were to invest, so far as it was capable of investment, and divide and apply the income, in the manner particularly specified, for the benefit of his children and grandchildren during life.

Power was given the executors to sell and dispose of all or any of the testator’s real estate whenever they and his wife, who was also nominated and acted as executrix, should unanimously think such sale advantageous to the estate; and they were invested, in that case, with full power and authority to convey it. The plaintiffs, who are the surviving executors, claim that they may now lawfully execute this authority.

While the testator’s wife was living, her assent was undoubtedly required to the conveyance of a valid title by means of the power. The right to sell was rendered conditional upon the unanimous conclusion of all, that the sale would be advantageous to the estate. It was a discretionary authority, in the exercise of which all were required to concur. But it was no more than that, for a dissent of either one of the three would prevent it from being used; and the fact that the authority may be of that nature does not restrain the survivors from executing it. The statute upon that subject is general, applying to discretionary and qualified authority to sell, as well as those of a more absolute and unrestricted character. The provision made upon the subject is, that, “ where a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors; ” and it seems to be clearly applicable to the present case.

The same construction, in this respect, has been given to another statute, in principle very much like this provision. That is the statute giving the acting executors full power to act under the will nominating them, where others, jointly selected, decline to accept the trust, In that case, the acting executors may exercise even a discretionary authority, though it may have been jointly conferred upon them with others, also designed to possess and execute it. And there is no substantial distinction in principle between that provision and the one more especially relating to this case ; for one provision confers upon the surviving recipients of a power the same authority which the other does upon acting executors, where others selected to exercise the authority with them decline to accept it. And, under the terms of that provision, no good reason appears for doubting the power of the surviving executors to exercise the authority to sell, provided they are satisfied that a sale of the real estate will be advantageous to those interested in the estate left for them by the testator. Judgment should therefore be directed, adjudging that the widow had but a life estate in the personal property bequeathed with the homestead; that the real estate, including the remainder after the widow’s life estate in the homestead, was devised to the executors for the purposes of the trust created by the sixth paragraph of the will; that the same disposition was made of the personal property bequeathed with the homestead, and of the residue of the $20,000 undisposed of by the widow; and that the surviving executors have the power to sell and convey any or all the real property, provided they concur in the conclusion that the sale will be advantageous to the testator’s estate; and for the recovery of the taxable costs of both parties, to be paid by the executors out of the shares of the defendants in the funds in their hands.

The shares of the grandchildren should not contribute to the expense of the litigation, because they are not made parties to the proceeding.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly. 
      
       Vernon v. Vernon, 53 N. Y., 351.
     
      
       Youngs v. Youngs, 45 N. Y., 254.
     
      
      Salisbury v. Morss, 7 Lans., 359, 362, 363.
     
      
      3 R S. (5th ed.), 27, § 132.
     
      
       3 R. S. (5th ed.), 197, § 66.
     
      
       Taylor v. Morris, 1 Com., 341.
     