
    Walter B. Wellbrock, Respondent, v. Edward Roddy and Others, Appellants, Impleaded with Jacob H. Kohlman, Individually and as Executor of and Trustee under the Last Will and Testament of Henry Wellbrock, Deceased, and Others, Defendants.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      July 30, 1915.)
    Will—Pleading—Complaint to set aside conveyance by executors— Illegality of sale admitted by demurrer—Will construed— Discretionary power of sale.
    Where the complaint in an action brought by an 'heir at law and devisee to set aside a conveyance of lands made by executors alleges that the conveyances were made “ for no purpose provided for by the will, and in contravention thereof; * * * of all of which facts * * * each of the defendants * * * had notice,” a demurrer admits the truth of such allegation, and hence will be overruled, although the will itself by another provision vests the executors with a discretionary power of sale.
    
      It seems, that a will which states that “for the purpose of carrying out the provisions of this, my will, without being in contravention of same, I authorize and empower my qualifying executors * * * to sell and
    convey at any time all and any piece of my property, when in their judgment they shall deem it necessary and advisable,” confers upon the executors a power of sale in their own discretion. The words relating to a sale “ in contravention ” of the will are superfluous and in no way limit the discretion- of the executors.
    Appeal by the defendants, Edward Roddy and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1914, overruling their demurrers to the amended complaint.
    Lynn C. Horris (Edward M. Perry with him on the brief),, for the appellants.
    Louis J. Altkrug, for the respondent.
   Ti-iomas, J.

The executors1 of Henry Wellbrock, purporting to execute a power of sale, conveyed land to each of the appellants. The plaintiff is an heir at law of the decedent and one of the devisee® of the remainder and seeks to set aside the conveyances, to partition the land conveyed and other property and to compel the executors to account. The appeal is from a judgment overruling demurrers to the complaint upon the ground that it does not state a cause of action against the purchasers, and that it improperly joins causes of action. The will, among other things, gives the residue of decedent’s real estate ■to the executors in trust to receive and to collect the rents and profits, pay the taxes, interest on mortgages and insurance, etc., and thereafter pay to the widow during her life the annual sum of $Y20 for the support of herself and unmarried daughters living "with her, as well as for their education, or in case there be not such dependence of unmarried daughters, to pay her the annual sum of $480. It further directs the executors to apply the remainder of said rents, with interest thereon, towards paying my just and lawful debts and paying and discharging all or any mortgages which are liens on any of my property,” and to accumulate a fund for that purpose by depositing the rents as directed. . The parties agree that the provision for accumulation is void, and the court correctly decided that it should be paid to the testator’s children. They were presumptively entitled to the next eventual estate. The 6th clause of the will directs that upon the remarriage or death of the widow the executors' shall convert the whole estate into cash and divide the net cash assets among the testator’s children, share and share alike, with a substitutionary provision for the issue of a child dying. The obvious purpose of that power of sale was to facilitate distribution. But a larger, though may be not unlimited, power was given by the 8th" subdivision of the will, “For the purpose of carrying out the provisions of this, my will, without being in contravention of the same, I authorize and empower my qualifying executors * * * to sell and convey at any time all and any piece of my property when, in their judgment, they shall deem it necessary and advisable,” and- to execute necessary instruments of conveyance. The amended complaint alleges that the conveyances were made “ for no purpose provided for by the will, and in contravention thereof; * * * of all of which facts in this paragraph alleged, each of the defendants * * * had notice.” It would have been sufficient to decide that, as the demurrer admitted that the grant was in contravention of the will and the grantee had notice of it, the grant is void in each instance. The appellants contend that the trustees had the discretion to determine (1) whether the sale was necessary for the purpose of carrying out the terms of the will; (2) when the sale should be had. Admitting that for the moment, the sale could not be valid if the grantee had notice that the sale was in contravention of the will. It would have been sufficient for the trial court to stop there, and overrule the demurrer. But it went farther and decided that the executors had no discretion to determine with finality whether the pxirpose of the will demanded the sale, that under the allegations of the complaint such purpose was not subserved, that the conveyance was at the risk of the grantee, and that he was not protected by the exercised discretion of the trustees. That conclusion may be examined. The power is given to carry out the provisions of the will. It is quite unnecessary to say that in terms, as it would be a necessary implication. ¡Nothing effective is added by the further words, “ without being in contravention of the same.” The power could not be exercised for the purposes of the will and be at the same time in contravention of it. The authorization to the executors is to sell “ at any time all and any piece of my property when, in their judgment, they shall deem it necessary and advisable.” The respondent proposes, as I understand, that the executors may decide at what time it is necessary and advisable to sell, hut cannot decide whether any purpose of the will makes it necessary and advisable. If their discretion is limited to the mere time of selling, the word necessary ” is used with scant propriety. For, when the executors decided that the day is at hand when it is necessary to sell, they must determine the exigencies of the estate on that day. If the purposes of the will demand that the property be sold in whole or in part, nothing is gained by authorizing the executors to decide at what time it is necessary to sell. It would be useful to permit them to pass upon the advisability of selling at a particular date, even though they could not pass upon the necessity of selling. But where they are to decide when it is necessary to sell, they thereby must pass upon the necessity of selling at all. Does the will mean that the question whether any sale is necessary depends upon facts which the executors cannot consider and decide ? How could executors intelligently and conscientiously make a sale without considering the facts and deciding upon necessities of the estate and whether some of the land must be sold? Of course they must do so. But even if they must consider and decide-, does their decision have- no force even in behalf of a bona fide purchaser ? Must he -also- investigate the condition of the estate, consider its necessities and whether they are s-uch as to authorize the executors to sell ? If that be so-, of what use is the decision of the executors ? Indeed, of what use the investigation of the purchaser, if the court may decide that he made erroneous conclusion and that the executor’s decision decides nothing whatever, except as to the time of sale ? That would make the power of sale a mere trap for the best-in-tentioned purchaser, and practically renders the land unmarketable, for no one would purchase at a provident price if the title depend upon, may he, complicated extrinsic facts of which there is no arbiter except the court. A will should read plainly to that effect if such was the purpose. While it is, perchance, possible to relate the word “ necessary ” solely to the time of selling, it is difficult to believe that the testator intended to use it in such restricted sense. I think that he meant to say that the executors should sell the land in whole or part when they deemed it necessary and advisable. As I have said, the sentence would have the same meaning if there were entire omission of the words “ for the purpose of carrying out the provisions of this, 'my will, without being in contravention of the same:” The cases instanced by the respondent are lacking in the essential element that no discretion to determine the necessity of selling is confided to the grantees of the power. In Griswold v. Perry (7 Lans. 98) the trustees were authorized to sell only in case of deficiency of income to support the testator’s daughters, and it was decided that a conveyance under the power was void, as it appeared that there was no such deficiency. But the will did not give the trustees any apparent authority to determine the fact. In Briggs v. Davis (20 N. Y. 15) the grantees of land in trust for creditors reconveyed to the grantor by deed which erroneously recited that the trusts had been executed. It was decided’ that a mortgage of the land by the debtor for a valuable consideration was void as against the trustees and those claiming under them. This was merely an attempt by a trustee and the maker of the trust to convey in contravention of it. It was not done in furtherance of the trust, nor did the trust instrument leave anything to the trustee’s' decision or discretion. Russell v. Russell (36 N. Y. 581) is to' the effect that a power to an executrix to sell real estate “ as she shall deem most expedient and for the best interest ” of certain legatees was not well executed by a conveyance of a portion of the land to one legatee in payment of a debt due from the testator to the legatee. It could not be clearer that the language of the power contemplated nothing like that, and the attempted execution of the power was perverse on its face. Some other cases cited by respondent (Kirsch v. Tozier, 143 N. Y. 390; Shepherd v. McEvers, 4 Johns. Ch. 136) support the contention that a purchaser must take notice of the limitation of the power of the trustee, a proposition too plain to discuss. In the ease at bar the purchaser ■was obliged to trace the executors’ authority, but the question is whether he did not find it in the will. But it is said that the matter is set at rest by Smith v. Peyrot (101 N. Y. 210). The action was- by a broker to recover commissions for attempting to procure, at the instance of executors, money to be secured by mortgage on property of the estate. A title company refused to make the loan because it discovered that the executors were not authorized to borrow the money for a purpose not contemplated by the will, although they were empowered in their discretion to sell, convey and mortgage any or all of her real estate “ for the purpose of carrying out the provisions of this instrument.” It is quite evident that the will showed that the executors had no power to give the mortgage for the purpose in view, and as the title company knew that, it could not accept the mortgage. But the rights- of a purchaser in good faith were not involved. But the question here is whether the will gave the executors power to decide a fact that involved the condition of the estate, and, if so, it falls within the rule supported by a long line of cases. Of such are Hancox v. Meeker (95 N. Y. 528); Roseboom v. Mosher (2 Den. 61) ; Haight v. Brisbin (96 N. Y. 132) ; Carroll v. Conley (9 N. Y. Supp. 865; affd., 124 N. Y. 643) ; Hovey v. Chisolm (56 Hun, 328). The language in the case at bar' is not the same as, nor is it as complete and clear -as.in the cases cited, but ini my judgment the testator intended just what the sentence says, that the land should be sold when the executors deemed it necessary and advisable.

The interlocutory judgment should be affirmed for the reasons already stated, with costs, with leave to the -appellants to answer within twenty days upon payment of costs.

Jenks, P. J., Stapleton and Rich, JJ., concurred.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Interlocutory judgment affirmed, with costs, with leave to the appellants to answer within twenty days upon payment of costs.  