
    Lydia P. Winslow, Appellant, v. George A. Miller, Respondent.
    
      When a sale, not exercised for the hest interests of an estate, will he set aside.
    
    A testatrix devised substantially all her property to her husband as executor in trust to be managed for the best interest of her estate, the income to be paid to her husband for life and on his death the principal to go to her daughter — giving to her executor a power of sale. The executor, when seventy-three years of age and very sick, though rational, executed to his son a deed of certain real property belonging to the estate worth $12,000, which was subject to-a mortgage for $4,000, and took back a purchase-money mortgage for $8,000, the entire purchase price.
    
      Held, that the transfer was not for the best interest of the estate and should beset aside.
    Appeal by the plaintiff, Lydia P. Winslow, from a judgment of the Supreme .Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 12th day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint.
    
      Josiah T. Marean, for the appellant.
    
      Horace Graves, for the respondent.
   Brown, P. J.:

This action was brought to have declared void and. set aside a deed of real estate executed by Robert Miller, as sole executor and trustee under the last will, etc., of Emily M. Miller, deceased, to his son George A. Miller, and also to have set aside and declared void a mortgage upon said real estate executed by said George to said Robert as trustee, as aforesaid, to secure the consideration or purchase money of said property.

Emily M. Miller was the wife of said Robert Miller and the mother of the plaintiff and said George A. Miller. She died in September, 1887, seized of the property in question and leaving a will, whereby she devised substantially all her estate to her executors in trust to manage the same as her said husband should direct, but for the best interests of her estate. The income therefrom was to be paid to her husband during his life, and upon his death the principal was devised and bequeathed to the plaintiff. By the express terms of the trust the executors were authorized to sell any or all of the real estate and invest the proceeds of the sale in bond and mortgage, or in other good securities.

Robert Miller, who alone qualified as executor, died on April 23, 1895. Three days ¡u'ior to his death, to wit, on April twentieth, he executed the deed in question and received from his son a mortgage upon the real estate for $8,000, payable May 1, 1900, with interest half yearly. The consideration expressed in the deed was $12,000. The property was, however, incumbered by a mortgage of $4,000, and the mortgage executed by George Miller to his father was given to secure all the purchase money which his father would have been entitled to receive upon the sale.

The mortgage was acknowledged on April 22, 1895, but the deed was not acknowledged by the grantor, but its execution was proven by the subscribing witness on April twenty-fourth, the day following the grantor’s death.

Robert Miller was, at the date of the deed, upwards of seventy-three years of age, and had been sick for some time, and was unable to conduct and manage the business which he had theretofore carried on upon the property. The subscribing witness to the deed testified that at the time of its execution Mr. Miller was very sick and was strongly impressed that his illness was going to be fatal; th&t he had been sick with heart disease for several years, and that his ailment had gradually become more serious and he had finally taken to his bed. His physician testified that he had attended him every day from April sixteenth until the day of his death; that he had heart disease and that one lung was also diseased. The physician was present when the deed was executed, and he testified that in his opinion Mr. Miller was at that time rational. Other testimony was given as to Mr. Miller's sickness and his mental and physical condition prior to and at the time, the deed was executed, and the court found as facts that he was very sick when he executed the deed, but that he was conscious and had full knowledge of the nature and contents of the instrument and that no advantage was taken of his feeble condition to induce him to execute the conveyance.

We are of the opinion that the deed and mortgage should be set aside. They do not represent the fair judgment of the trustee, and the transaction is not entitled to be treated as such a sale of the property as was intended and contemplated by Mrs. Miller, the testatrix. She created the trust for the benefit of her husband and the plaintiff, and the provision that the power of sale was to be executed for the best interests of her estate referred to those two beneficiaries. The sale made was not for the benefit of Robert Miller, as there is reasonable doubt but that when he executed the deed he was aware that he would live but a very short time. It was not for the benefit of the plaintiff, as it imposes upon her the risk of impairment of the security, arising from depreciation in the value of the land, and deprives her of any benefit that might arise from an enhancement of. value. • There is great doubt, we think, upon the evidence whether there was a delivery of the deed prior to Robert Miller’s death; but, assuming that the deed was delivered, we think that a transfer of the property made under such circumstances as was shown by the testimony should be set aside.

The judgment must be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  