
    James Fraser et al., Ex’rs, Resp’ts and App’lts, v. The Trustees of the General Assembly of the United Presbyterian Church of North America, Imp’ld, App’lts and Resp’ts.
    
      (Court of Appeals, Second Division,
    
    
      Filed March 17, 1891.)
    
    1. Wills—Equitable convebsiow.
    When, a will expressly confers power upon the executors to convert real estate into money and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into effect, and it appears that in no other way can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty.
    2. Same.
    Testator by his will after bequeathing a house and lot and the income of $4,000 to his wife for life, directed that $1,600 be paid in legacies three years after his wife’s death and gave his residuary estate to four legatees, among whom was defendant, a foreign corporation, not authorized to take real estate by the laws of this state. The executors were authorized and empowered to sell real estate. The personal estate was exhausted in the payment of debts so that the estate consisted of the said house and an equity of $6,500 in a farm. Meld, that testator must have intended that the farm should be .converted into money within three years after his death; and the legacies paid and the residue divided according to his directions, and the house and lot sold three years after his wife’s death and with the $4,000 disposed of in like manner.
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, which affirmed a judgment entered on a decision of a special term.
    February 26, 1880, John McNaughton duly executed his last will and testament, the material parts of which are as follows :
    “Item First. I give and bequeath to my wife, Margaret McNaughton, my house and lot in the village of Caledonia, and all my household furniture, to have and to hold the same to her for and during her natural lifetime.
    “ Item Second. I give in trust to my executors four thousand" dollars to.be securely invested, and the interest and income thereof paid to my wife, Margaret, semi-annually year by year, during her lifetime. The above legacy, and the provisions herein made for her, are to be taken and received by her in lieu of all right or claim of dower of any land or real estate of which I may die seized, nevertheless. These bequests revert at the death of my wife and fall back into the general fund of my estate.
    “ Item Third. I do hereby authorize and empower my executors, or a majority of them, as soon as convenient after the death of my wife, to sell and dispose of my real and personal estate of which I may die seized, on such terms as to the said executors or a majority of them shall seem just and proper,within three years-after my wife’s death.
    “ Item Fourth. I give and bequeath to the following named children of my sister, Janet McLaren, viz.: To John F. McLaren the sum of three hundred dollars, to be paid within three years from my death, without interest.
    “To William McLaren the sum of one hundred dollars, to be paid to him within three years from my decease, without interest.
    “ I give to my niece, Jane Atchinson, the sum of three hundred dollars, to be paid within three years of my decease, without interest.
    “Item Fifth. I give and bequeath to my niece, Margaret Sharp, the sum of three hundred dollars, to be paid within three years from my decease, without interest.
    “ Item Sixth. I give and bequeath to the following named children of my sister, Margery McKenzie, viz.: I give to Duncan McKenzie the sum of $3,000, to be paid within three years from my death, without interest.
    “I give to my niece, Margery McDougal, $300, to be paid within three years of my death, without interest. If they all survive at the time of the final distribution of my estate; but if they do not all survive at the time of such distribution, such surplus, if any, shall be paid equally to the survivors.
    “Item Seventh. If there is not a vault oh the lot where my wife Sybil’s body is interred, and where I direct my body shall be interred, I hereby require my executors to procure and erect a suitable vault upon said lot, of a capacity to receive two coffins, with a raised panel on the cover, with a suitable inscription engraved thereon, and all expenses incurred therefor I hereby authorize and direct my executors to pay.
    “ Item Eighth. I hereby authorize and empower my executors, or a majority of them, as soon as convenient after my decease, to sell and dispose of my real estate of which I may die seized on such terms as to the executors, or a majority of them, shall deem just and proper, within three years from my death, and until said real estate is sold I hereby authorize my executors to take charge and supervision over it, and the avails of the said real estate, together with such balance as shall remain of my personal property after all debts, charges, funeral expenses and legacies are paid off " as provided for, together with all expenses and charges of executing this will.
    “ Item Mine. I hereby direct to be divided equally between and paid to the following named societies:
    “ I do hereby give and bequeath to The American Bible Society, formed in Mew York in the year 1816, one-fourth part of the residue of my estate, to be applied to the charitable use and purpose of said society.
    “ Item Ten. I do hereby give in trust to the Trustees of the General Assembly of the United Presbyterian Church of North America the one-fourth part of the residue of my estate, to be appropriated by the said General Assembly to the foreign mission fund of the said church.
    “ Item Eleven. I also give in trust to the said General Assembly the one-fourth of the residue of my estate, to be appropriated by the said General Assembly to the Home Missionary Society fund of said church.
    
      “ Item Twelfth. I further give in trust to the said General Assembly the one-fourth part of the residue of my estate to be appropriated by the said General Assembly to the educational fund of said church, and a-uthorize my executors to pay over the same to them, or their treasurer for the time being, to be applied to the charitable use and purpose of said general assembly.
    “ And lastly, I do hereby nominate and appoint my friends, James Frazer, Esq., and William H. Walker, both of Caledonia, Livingston county, N. Y., and Daniel Stewart, of Wheatland, Monroe county, to be the executors of this my last .will and testament, hereby revoking all former wills by me made.”
    April 26, 1881, the testator died, leaving him surviving Margaret McNaugkton, his widow, and George H. Bristol and Larius F. Bristol, Jr., infant sons of a deceased daughter, his heirs and only heirs at law and next of kin.
    The nephews and nieces to whom legacies were bequeathed are living. The testator’s personal property was insufficient to pay his debts and the expenses of settling his estate. He died seized of a house and lot in the village of Caledonia (mentioned in the first item of the will) worth about $4,000 and of a farm of 117 acres in the same village worth about $9,000 but subject to a mortgage of about $2,600. This action was brought by the executors to obtain a construction of the will and to have the rights of the beneficiaries determined. The nephews and nieces to whom legacies are given by the fourth, fifth and sixth divisions of the will answer jointly admitting the allegations of the complaint. The heirs at law served through their guardian ad litem the usual answer of infants submitting their rights and interests to the court The American Bible Society and the Trustees of the General Assembly of the United Presbyterian Church of North America answered separately. No appeal is taken to this court except by the Trustees of the General Assembly of the United Presbyterian Church of North America.
    
      L. K Bangs, for pl’ffs; Joseph W. Taylor, for The United Presbyterian Church of North America; P. M. French, for George H. and Larius F. Bristol, Jr.
   Follett, Ch. J.

The only question presented by this appeal is whether the testator’s realty is converted by the will into personalty. The fee of the farm is not devised, nor is the fee of the house and lot, and both the death of the testator descended to his heirs-at-law, George H. Bristol and Larins F. Bristol, Jr., subject to the life estate of the widow in the house and lot, or to her dower right in both as she may have elected, and also subject to such legacies, if any, as are charged xipon the realty. It is evident from the face of the will that the testator did not intend to die intestate as to any part of his estate. In all of the divisions of his will, subsequent to the seventh, he speaks of the residue of his estate, which he disposes of as "such in those provisions. This will was executed just fourteen months before the testator’s death, and it is not asserted that his liabilities were increased or the amount or character of his estate changed within that period, and at his death his debts exceeded his personalty. He directed, by the second division, that there should be invested for the benefit of his widow $4,000, the interest upon which is to be paid to her semiannually during life; and he bequeathed to nephews and nieces legacies amounting to $1,600, making the aggregate amount of legacies $5,600, none of which can be paid without resorting to the real estate, which fact must have been as evident to the testator at the date of his will and at all times thereafter as it is now apparent to the court. Within the rule laid down in McCoon v. McCoon, 100 N. Y., 50, the legacies bequeathed in the second, fourth, fifth and sixth divisions of the will are a charge upon the realty and must be provided for out of the avails produced by a sale of it

It is apparent, we think, from the face of the will, taken in connection with the situation of the testator's estate, that he must have intended that his farm should be sold and converted into money within three years after his death and the legacies for the benefit of his widow, nephews and nieces provided for, and that one-fourth of the residue should be paid to The American Bible Society and three-fourths of it to the Trustees of the General Assembly of the United Presbyterian Church of ¡North America; and that within three years after the death of his widow the house and lot should be sold and the avails thereof, together with the $4,000 invested for her benefit, be paid in like proportions to those corporations.

When a will expressly confers power upon the. executors to convert real estate into money and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into effect, and it appearing that in no other wav can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty. Hood v. Hood, 85 N. Y., 561; Lent v. Howard, 89 id., 169; Moncrief v. Ross, 50 id., 431; Fisher v. Banta, 66 id., 468; Clift v. Moses, 116 id., 144; 26 N. Y. State Rep., 405.

This -will does not, in express terms nor by implication, confer upon the executors power to determine whether or not a sale shall be made, but vests them with discretion when within specified periods both pieces shall be sold. ¡Nor can the inference be drawn from the will and the situation of the estate that he did not absolutely intend to require his executors to convert his realty into personalty for the purpose of carrying out his intentions, for, .as before stated, in no other way could he have anticipated that they could be carried into effect. The eighth and ninth divisions should be read as though separated by a comma and connected by the relative “ which,” it being clear that the testator in the ninth and subsequent divisions referred to the avails of his estate after payment of debts, charges, funeral expenses, legacies and expenses of administration mentioned in the eight divisions.

This case is not within the reason of Scholle v. Scholle, 113 N. Y., 261; 23 N. Y. State Rep., 171, in which every devise and legacy could be satisfied without a conversion of the realty into money, while in the case at bar none of them except the devise of the life estate in the house- and lot to the widow can be without a conversion. A conversion being absolutely indispensable to carry out the purposes of the testator and a power to convert being expressly given to his executors, it must be held that it was his intention that the realty should be sold for the purpose of carrying out the provisions of his will.

Tme judgment is modified as follows: (1.) The part which adjudges ; “ That under the said will there is no equitable conversion of any of the real estate into personal property,” is reversed, and it is adjudged that the realty of which the testator died seized is converted into personalty; (2) The part which adjudges “that the portion of the real estate of said John McNaughton mentioned in said items, numbers 10, 11 and 12 of his will, are not disposed of by said will but descend to his heirs-at-law,” is modified by adding thereto the words, “ subject to the power and duty of the executors to sell, and subject to the trusts declared in the 8th, 9th, 10th, 11th and 12th divisions of the will.” (3) It is adjudged to be the duty of the executors to sell the farm, and out of the avails pay the costs allowed in this action, and, subject to the claims of ■creditors, pay the legacies for the benefit of the widow, nephews and nieces, and one-fourth of the residue, subject to the limitation of chap. 360, Laws of 1860, to the American Bible Society, and three-fourths of the residue, subject to the limitation of that chapter, to the trustees of the General Assembly of the United Presbyterian Church of North America. (4) After the death of the widow the house and lot and household furniture must be sold and the avails thereof, together with the sum invested for her benefit, paid, subject to the limitation of chap. 360, Laws of 1860, in like proportions to said corporations, (5) That part of the judgment which awards to the guardian ad litem $68.38 costs against the trustees of the general assembly of the United Presbyterian ■Church of North America is reversed, and it is adjudged that said costs be paid to said guardian ad litem out of the estate. The trustees of the General Assembly of the United Presbyterian Church of North America are allowed taxable costs in the general term and in this court, payable out of the estate, and the guardian ad litem is allowed taxable costs in this court, payable out of the estate.

The judgment as so modified, is affirmed.

All concur. 
      
       Modifying and affirming 33 N. Y. State Rep., 347.
     