
    Stephen B. Hutchings and Abraham S. Jones, Executors, &c., of William Osborn,deceased, v. Thomas Baldwin and George Baldwin.
    Where one W. 0., of the city of Kew York, by his will, dated October 7,1841, and proved June 14,1842, as a will of real and personal estate, after directing that all his debts and funeral expenses be paid, gave all the rest and residue of his estate, real and personal, to his wife E., during her natural life, with power during her life to make leases of the real estate, with the concurrence of the acting executors, provided the leases commenced in possession and were not for more than twenty-one years; and declared such bequest and devise to be in lieu and bar of all dower and other claim on the estate; and then authorized the acting executors to sell all or any of the real estate, absolutely, and convey it by sufficient deeds to the purchasers, and declared that after the sale his said wife should have the same interest in the proceeds of the property sold, as she had before the sale in the property itself; and then directed, that “ after the decease of his wife,” one-third, of his estate, real and personal, should be divided into four equal parts, and gave orne of these four parts to A. E., for life, and after her death, to the children of R. B., deceased; one to S. S., for life, and after her death, to her children; one to M. S., for life, and after her death, to her children, and the other to the children of said R. B.; and then disposed of the other two-thirds by giving, “ subject to his said wife’s life estate,” one-sixteenth of said two-thirds to his brother H.; one-sixteenth to the children of his sister H.¡ one-sixteenth to one W. O.; one thirty-second to J.; one thirty-second to A.; and one-sixteenth to N., during her life, and after her decease, to her children; and by then giving one-tliird of the residue of his estate to M., “ absolutely, forever, subject to his said wife’s life estate,” and by then giving all the rest and residue of his estate, real and personal, “ subject to his said wife’s life estate,” “ absolutely, forever,” “ one-seventh thereof to each” of seven nephews and nieces named in the will; the said will then declaring, that “in case of the death of any devisee or legatee before me (the testator), unless his or her share is expressly for life only, the same shall pass to his or her next of kin as personal estate, as if such devisee or legatee had received the same and it had passed from him or her as personal estate in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested, as personal estate at my decease, but so as to be subject to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives.” Lastly, it appointed the testator’s wife, E., executrix, and the defendants, Stephen B. Hutchings and Abraham S. Jones, executors of said will. The last two alone qualified. The widow of the testator died September 27, 1858.
    
      1. Held, that after her death, the said executors could make a valid contract for the sale and conveyance of real estate of which the testator died seized, and the defendants were decreed to specifically perform a contract made by them with said executors, on the 10th of October, 1859, for the purchase of a parcel of such real estate.
    (Before Hoffman and Woodeuff, J. J.)
    Heard April 12,
    decided July 7, 1860.
    This is a case agreed upon by the parties, and submitted under the 372d section of the Code.
    William Osborn, of the city of New York, died, after having made, published and declared his last will and testament, dated October 7, 1841. The provisions of the will are as follows, viz :
    “ First, I direct all my lawful debts and funeral expenses to be paid. Secondly, all the rest and residue of my estate, real and personal, I give to my beloved wife Elizabeth, during her natural life; she to receive the rents, profits, interest and income thereof, during her natural life, for her own use. I also empower her, during her natural life, to make leases of said real estate (with the concurrence or approval of my acting executors if any others should act and be living, otherwise without such concurrence or approval), but so that said leases commence in possession, and be for not more than twenty-one years, and no bonus for the leases be taken; this bequest and devise to her to be in lieu and bar of all dower and other claim on my estate. Item.—I authorize my acting executors, and the survivors of them, to sell all, or any part, of my estate, real or personal, absolutely, and to give sufficient deeds to the purchasers ; * * * such sale not to vacate any previous recorded lease, executed according to the provisions of this will; and after the sale my said wife shall have the same interest in the proceeds as ' she had in the property before the sale. Item.—After the decease of my said wife, I direct one-third of my said estate, real and personal, to be divided into four equal parts : one of these four equal parts I give to my wife’s sister, Ann Nixon, during her natural life, and after her death, to the children of her brother, Robert Barnes, deceased, share and share alike forever; one other of those four parts I give to her sister, Sarah Sheldon, during her natural life, and after said Sarah’s death, then to her children, share and share alike, forever; one other of those four parts I give to my wife’s sister, Margaret Sheldon, during her natural life, and after her death, to her children, share and share alike; and the other of those equal fourth parts I give to the children of my wife’s said brother, Robert Barnes, deceased, share and share alike, .forever. Item.—The other two-thirds of my said estate, real -and personal, I dispose of as follows, subject to, my said wife’s life estate, namely : I give one-sixteenth part of said two-thirds to my brother Henry; one other sixteenth part I give to the children of my sister Hannah, deceased, forever, share and share alike ; one other sixteenth part I give to William Osborn, son of my brother Jotham, deceased; one thirty-second part of said two-thirds I give to my brother Jonathan; one other thirty-second part of said two-thirds I give to my brother Abner; one other sixteenth part of said two-thirds I give to my sister Nancy, during her natural life, and after her decease, to her children, share and share alike, forever. Item.—I give one-third of all the rest, residue and remainder of my estate, real and personal, to my brother Michael, absolutely, forever, subject to my said wife’s life estate. Item.—All the rest, residue and remainder of my estate; both real and personal, subject to my said wife's life estate, I give to the following persons, to each his or her share absolutely, forever, namely: one-seventh thereof to each of the three children of my sister Phebe, deceased, named Agnes Labaugh, Sarah Ann Jones and Thomas Whitlock, being children by said Phebe's first husband, John Whitlock; and also, one-seventh to each of the four children" of my sister Sarah, deceased, that is to say, to William 0. Dunham, Joseph E. Dunham, Amanda Dunham and Emma Dunham. Item.—In case" of the death of any devisee or legatee, before me, unless his or her' share is expressly for life only, the same shall pass to his or her next of kin as personal estate, as if such devisee or legatee had received the same, and it had passed from him or her as personal estate, in case of intestacy, but free from his or her debts. Every devise or bequest shall be considered as vested as personal estate at my decease, but so as to be subject'to any prior life estate created by this will, and not to bear interest in favor of any party until the time for payment to such party arrives. Lastly.—I constitute and appoint my wife Elizabeth, executrix, and my friends Stephen B. Hutchings and Abraham Jones, executors, of this my will, and they shall not be liable for anything, except each for his own wilful default, but each for his own acts, deeds and wilful defaults, and not for those of the other, nor for joining in receipts for conformity, without receiving the moneys.”
    The said will was proved, as a will of real and personal estate, before the surrogate of New York, on the fourteenth day of June, A. D., 1842 ; on which day, letters testamentary were granted by the said surrogate to Stephen B. Hutchings, one of the executors named in the said last will and testament.
    On the llth day of December, A. D., 1842, letters testamentary were also granted by the surrogate of New York to Abraham S. Jones, also one of the executors named in the said last will and testament, in conjunction with the said Stephen B. Hutchings, theretofore qualified.
    The widow of the testator died on or about the 2l7th of September, A. D., 1858. Letters testamentary were not granted to her, and she left her surviving the said Stephen B. Hutchings and the said Abraham S. Jones.
    The testator was, at the time of his death, seized of a certain parcel of land, situate in the city of New York, and described in the case.
    On the 10th of October, 1859, Stephen B. Hutchings and Abraham S; Jones, the surviving executors of Osborn, entered into a written contract with the defendants, for the sale to them, and purchase by the latter, of such parcel of land. By the terms of such contract, if the parties of the second part (the purchasers) failed to comply with the covenant on their part, they were to forfeit $1,000, which was paid down on signing the contract; and if the title should prove defective, such sum was to be returned to them.
    “ The said surviving executors have, since the first day of February, 1860, the day mentioned in the said agreement. for the completion of the purchase, duly tendered to the said Thomas Baldwin and George Baldwin, a deed for the premises above described, duly executed and acknowledged, and demanded the balance of the money to be paid by the last named parties upon the delivery of the said deed, pursuant to the said agreement. The deed, as tendered, was not objected to, as to form and execution, by the last named parties, yet they refused to take the said deed, and to pay the sum of six thousand five hundred dollars, so agreed by them to be paid, as aforesaid.” A copy of the said deed is annexed to the case.
    “ The said defendants, Thomas Baldwin and George Baldwin, objected to the receiving of the said deed, on the ground that the said Stephen B. Hutchings and Abraham S. Jones had not, under and by virtue of the said last will and testament of the said William Osborn, or otherwise, any power or authority to convey the real estate mentioned in the said deed, or to give a good and sufficient title therefor.”
    “ This case is submitted by the parties above named, to the Superior Court of the city of New York, for the purpose of determining the rights of the parties, according to the provisions of section 3l2 of the Code of Procedure. And it is agreed, that if the court should be of opinion that the said Stephen B. Hutchings and Abraham S. Jones, executors, as aforesaid, have power and authority to convey the said property, that then, and in such case, the said court shall give judgment accordingly, and shall adjudge and decree that the said defendants,. Thomas Baldwin and George Baldwin, specifically perform their contract aforesaid, and pay to the plaintiffs the remainder of the purchase money of the said property, being the sum of six thousand five hundred dollars, with interest from the first day of February, 1860.”
    “ And it is agreed, that if the court should be of opinion that the said plaintiffs, executors, as aforesaid, have not power and authority to convey the said premises, that then, and in such case, the said court shall give judgment accordingly, and that the sum of one thousand dollars, already paid as part of the said purchase money, shall be repaid to the said' Thomas Baldwin and George Baldwin, and the said contract of purchase by them be declared null and void, and of no force or effect; and that the said parties, plaintiffs and defendants, may respectively have such further or such other relief as to this court may appear proper.”
    The case was properly signed and duly verified.
    
      E. W. Walgrove, for the Plaintiffs.
    
      Messrs. Berrien ¿f Pert, for the Defendants.
   By the Court. Hoffman, J.

—The authority conferred in this will upon the executors, is not an estate in trust, but a power; an authority to do an act in relation to lands. (1 R. S. 732, § 74; Lang v. Ropke, 5 Sand. 362; Reedy. Underhill, 12 Barb. 113; Tucker v. Tucker, 1 Selden, 408.) The power in question, is a general power in trust, (§ 114, [94,] 1 Revised Statutes, 734, article, Powers.) By section 122, [102,] the provisions of the second article of the title from sections 66 to 71, both inclusive, are made applicable to powers in trust, and the grantees of such powers. By section [67,] page 730, “when the purposes for which an express trust shall have been created, shall have ceased, the estate of the trustees 'shall also cease.” So when the purposes of a power are accomplished, the power is at an end.

We are then required to examine the will of the testator with care, to ascertain to what extent and for what purpose he has created and conferred the power; and while on the one side, his general language should not be strictly and rigorously construed so-as to admit of no case for its exercise which is not to a demonstration within those purposes ; on the other, if we find that estates and interests fully vested, are to be affected by its execution, we must be scrupulous in extending it, because it would be, in so far, an encroachment upon that absolute right of disposition which attends proprietorship.

In construing this authority and determining its extent, the intention of the testator in creating it must constitute the guide. Fronty v. Fronty, (1 Bailey’s Eq. Rep. 517 ;) Wilson v. Troup, (2 Cowen, 195.) The devisor has, in the first place, given to his wife a clear life estate, in all the remainder of his property, real and personal, after payment of his debts; “ she to receive the rents, issues and profits, during her natural life, for her own use.” He has then empowered her to make leases during her life, (with the concurrence of his other acting executors,) so that such leases commence in possession, and be for not more than twenty-one years. This bequest to her was to be in lieu of all dower and other claim upon his estate.

The language of the authority is .absolute and comprehensive ; so much so that we are bound to see clearly, that it is to be restricted by force of other clauses, to certain cases, or for certain purposes; otherwise, it undoubtedly would authorize a sale after, as well as before the death of the widow.

It is not enough to restrain it that portions of the will indicate that he contemplated that some of his real estate might remain unsold after her death. He might well expect that the executors might, in exercising a sound discretion, leave portions, if not all, unsold.

The more important clause, is- the one which provides, that “ after the sale, my wife shall have the same interest in the proceeds as she had in the property before the sale.” At the first view, this would tend to the conclusion, that the sale was to be during her life. But it admits of the meaning, that if a sale is made either of all the real estate, or of any portion while she lives, such shall be her interest in the avails. It is not sufficient to overrule the comprehensive language of the power.

There is another clause of great importance. He directs “ that every devise or bequest, shall be considered as vested as personal estate, at his decease, but so as to be subject to any prior life estate executed by this will, and not to bear interest in favor of any party until the time for payment to such party arrives.” This, and other clauses, indicate with sufficient clearness, that he meant and expected that his property should, for the purposes of distribution, be treated as personal estate, and hence tend to construe and define the power .to sell, by which a conversion actually into personalty, would be accomplished, and give it full and absolute effect.

In Meyrick v. Coutts, (Exch. 1806, cited by Sugden on Powers, vol. 1, page 335,) a devise was to A. the testator’s wife, for life'; and after her decease, a power-to trustees to sell, and pay the money among the children of B., who had an infant child then living. The court held that a sale could not be made "till after the widow’s decease. Here the power did not arise until her death.

In Fry v. Fish, (Rolls 5, Áug. 1811, cited also by Mr. Sugden on Powers, vol. 2, p.463,) amotherhad joined in a recovery and settlement, by which the estates were limited to her for life, then to the husband of her daughter for life, with remainders over to children of the marriage. There was inserted a power of sale at any time during the lives of husband and wife, with their consent, and of the survivor. A sale was made in the lifetime of the mother. It was objected that the power could not be executed until her death; but the purchaser was compelled to take.

Here the outstanding life estate did not prevent a sale, because the mother had united in the instrument which conferred the power on the trustees with consent of the husband and wife.

In Moseley v. Hide, (17 Queen’s Bench, 91,) a sale made during the life of a wife, when the power was given, to be exercised after her death, was held invalid.

This also was a case of a plain restriction to a given event, for the exercise of the power.

The judgment must be for the performance of the contract, payment of the purchase money by the defendants, and conveyance by the plaintiffs, according to the submission, without costs to either party.

Ordered accordingly.  