
    Mellen v. Banning et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 15, 1891.)
    1. Wills—Construction—Jurisdiction of Supreme Court.
    An action to construe a will, and to restrain the executors from exercising a power of sale, cannot be maintained in the supreme court of New York on the ground that the devisees have elected to take the real estate in kind, instead of. having the same sold and distributed as authorized by the will, unless a trust under the will is involved, since courts of equity have jurisdiction to interpret wills only as an incident to their jurisdiction over trusts. Following Monarque v. Monarque, 80 N. Y. 320.
    2. Quieting Title—Defect on Face of Record.
    Nor can such action be maintained as a bill to remove cloud from title where the - complaint alleges that the power of sale is void on its face.
    8. Wills—Devise Subject to Sale and Distribution—Election.
    In an action to restrain the exercise of a power of sale contained in a will, by which testator devised all his real estate to his widow and children, and authorized bis executors, “for the purposes of a division or distribution, or for any other purpose that they in their best judgment may think proper, ” to sell the real estate and divide the proceeds, etc., the complaint alleged that on the death of testator the devisees took possession of and occupied the real estate, and continued in the exclusive control of the same, “and have enjoyed, possessed, and treated the same as real estate, and that this was done by the acquiescence of the executors and all the parties in interest, ” thus exercising their election to take the real estate itself, instead of their distributive share of the proceeds thereof; and that all testator’s debts were paid. Held, that the complaint stated a cause of action. Following Prentice v. Janssen, 79 N. Y. 478.
    Appeal from special term, New York county.
    Action by Sarah B. Mellen against William G. Banning, sole surviving executor of the last will and testament of Abner Mellen, deceased, Helen J. Banning, wife of said William C. Banning, Maria L. Kendall, Abner M. Wilcox, and Winnifred Wilcox, his wife, and Gordon McKay Mellen, Stanley Mellen, and Evelyn Mellen, minor children of Abner Mellen, Jr., deceased, and of the plaintiff, to obtain a construction of the will of decedent, and to restrain the execution of a power of sale therein contained. The material parts of the will are as follows: “Fifth. All the real estate of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give and devise and bequeath unto my wife, Helen L. Mellen, and my three children, Abner Mellen, junior, Maria L. Kendall, and Helen J. Banning, share and share alike to them, their heirs and assigns forever. Sixth. All the rest and residue of my estate of which I shall die possessed, or to which I shall be entitled at the time of my decease, I give and bequeath unto my said wife, Helen L. Mellen, and my three children, Abner Mellen, junior, Maria L. Kendall, and Helen J. Banning, in the following proportions, that is to say: To my said wife, Helen L. Mellen, three-ninths thereof, and to each of my said children, Abner Mellen, junior, Maria L. Kendall, and Helen J. Banning, two-ninths thereof, to have and to hold the same to them, respectively, and to their respective heirs and assigns forever. * * * Eighth. I hereby give full power and authority to my said executrix and executors, or whichever of them shall qualify, and the survivors and survivor of them, for the purposes of a division or distribution, or for any other purpose that they in their best judgment may think proper, to grant, alien, sell, and convey, either at public or private sale, all or any real estate owned by me, or to which I shall be entitled, or in which I shall have any interest, at the time of my decease, and to apply the proceeds of such sale or sales in conformity to the provisions of this my last will and testament.” The prayer of the complaint was—“First, for a judicial construction of said last will and testament of said Abner Mellen, deceased, and that it may be adjudged that under the devise contained in the fifth clause of said will the widow of said testator and his said three children, Abner Mellen, Jr., Helen J. Banning, and Maria L. Kendall, each acquired and became seised and possessed and vested with the title in fee-simple absolute in possession of a one-fourth part or share in the above-described lands and premises, 'and that by reason thereof either of said devisees could sell and dispose of their respective parts or shares; second, that the so-called ‘power of sale,’ contained in the eighth clause of said will, is and was inoperative, null, and void, and that it never had any validity; third, that the said executors and executrix, or the survivor or survivors of them, have not now, and that they never had, any power or authority under said will to sell said real estate, or any part thereof; fourth, that by reason of the premises hereinabove set forth the said Helen L. Mellen, widow of said testator, and his three children, Abner Mellen, Jr., Helen J. Banning, and Maria L. Kendall, and his said grandson, Abner M. Wilcox, •decided and elected to take their respective parts or shares in said lands and premises, instead of the proceeds from a sale thereof under said so-called ‘power of sale; ’ fifth, and that an injunction issue out of this court, enjoining and restraining the said William 0. Banning, as the sole surviving executor of the last will and testament of said Abner Mellen, deceased, as such executor, from selling said lands and premises, or any part thereof, at public or private sale, and from advertising, offering, or exposing for sale said lands- and premises, or any part thereof, and that said executor be enjoined from making or executing .any deed or deeds of conveyance as such executor of said lands and premises, or of any part thereof, until the further order of the court to the contrary, and that the plaintiff may have such other or such further judgment or relief as this court may deem proper to grant, together with the costs of this action.” A demurrer to the complaint was overruled, and defendants appeal.
    Argued before Van Brunt, P. J., and Daniels and Lawrence, JJ.
    
      A. T. Ackert, for appellants. H. Daily, Jr., for respondent.
   Lawrence, J.

The action is brought for a judicial construction of the last will and testament of Abner Mellen, Sr., deceased, and to obtain an adjudication that under the devise contained in the fifth'clause of said will the widow of the testator and his three children, Abner Mellen, Jr., Helen J. Banning, and Maria L. Kendall, should acquire and become seised and possessed in fee-simple absolute of a one-fourth part or share in the lands and premises mentioned in the complaint, and that the power of sale contained in the eighth clause of said will given to the executors of the testator is inoperative, null, and void, and that it never had any validity. The infant defendants, who are the children of Abner Mellen, Jr., a son of the testator, who has died since the death of his father, demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action. It is alleged in the complaint that the widow of the plaintiff and his three children entered into the use, occupation, and possession of said lands and premises, and continued in such possession until thedeath of the mother, which occurred on the 28th day of September, 1888, and that during all that time said parties exercised control, dominion, and ownership over their respective parts or shares in said lands and premises, and collected and received for and applied to their own use and benefit the rents, etc., of said real estate. It is also alleged that on the 5th day of November, 1888, Abner Mellen, Jr., being indebted to his wife, executed and delivered to one Lawrence E. Ellis a full covenant warranty deed of tiis share in said lands and premises, and that on or about said date said Ellis executed and delivered to plaintiff, the wife- of Abner Mellen, Jr., a full covenant warranty deed of the premises conveyed to him. There are various allegations in the complaint designed to show that the power of sale conferred upon the executors by the eighth clause of the-will has become inoperative by reason of the failure of the executors to exercise the same, and also by reason of the devisees having agreed and elected among themselves to take the real estate, and use and occupy the same. These allegations, being made as matters of fact, are, of course, admitted by the demurrer: We have no doubt that under the fifth clause of the will of" Abner Mellen, Sr., the widow and the three children took an estate in fee in the real estate subject to the execution of the power of sale given to the executors. Crittenden v. Fairchild, 41 N. Y. 289; Kinnier v. Rogers, 42 N. Y. 531; Hetzel v. Barber, 69 N. Y. 7; Insurance Co. v. Shipman, 108 N. Y. 22, 24, 15 N. E. Rep. 58. It has, however, frequently been held that where-a will directs real estate to be converted into money, and the proceeds distributed, the parties entitled thereto may, if of lawful age, if the rights of others, will not be affected, elect to take the lands and prevent the actual conversion, thereof into personalty, and that no distinct or positive act is required, but that a slight expression of intent will be considered sufficient to show such: an election. Prentice v. Janssen, 79 N. Y. 478. As was stated by Mr. Justice O’Brien in disposing of. the demurrer interposed to this complaint by William C. Banning, the sole surviving executor of the last will and testament of Abner Mellen, Sr., deceased: “The complaint here was undoubtedly modeled on the case of Prentice v. Janssen, for we find the very language-there used here employed. Thus it is alleged that the lands «have been enjoyed, possessed, and treated the same as real estate, and that this was done-by the acquiescence of the executors and all the parties in interest.’” With these allegations stated as matters of fact in the complaint it is impossible for us to say, keeping in view the decision” in Prentice v. Janssen, supra, and in similar cases, that the complaint does not state facts sufficient to constitute a cause of action, and we are therefore of the opinion that the judgment of the-court below was right, and should be affirmed, with costs and disbursements, to the respondents.

Van Brunt, P. J.

This action, according to the complaint, is brought to-obtain a construction of the will of one Abner Mellen, deceased, and also to restrain his executors from executing a power of sale contained in that will, upon the ground that such power was inoperative, null, and void, and never had any validity. To this complaint the infant defendants demurred, upon: the ground that it does not state facts sufficient to constitute a cause of action. While concurring with the conclusion arrive! at by Mr. Justice Lawrence in his opinion thereon, although the point is not distinctly taken by the counsel for the infant defendants, I do not think that the court ought to-en tertain jurisdiction of this action, for the reason that it cannot be maintained as an action for the construction of the will, because the jurisdiction of courts of equity to pass upon the interpretation of a will is incidental to that over trusts, and there is no question of trust in the will mentioned. This rule was distinctly enunciated in the case of Monarque v. Monarque, 80 N. Y. 320, in which, in speaking of a certain action which had been brought to-construe a will, it'was held that the ease was not a proper one for the action for the construction of a will, because there was no trust or other element to-justify invoking the jurisdiction of the court for that purpose. Therefore it is clear that this action cannot be maintained as an action to construe a. will.

But it is urged that the action may be maintained for the purpose of removing a cloud upon the title, and in support of that proposition the counsel for the respondents cite the case of Butler v. Johnson, 111 N. Y. 204, 18 N. E. Rep. 643, and De Witt v. Van Schoyk, 110 N. Y. 7, 17 N. E. Rep. 425. An. examination of these cases will show that they do not support the claim in this action. It is a well-settled principle regulating the invocation of the-jurisdiction of a court of equity to remove a cloud upon a title that if the defect appears upon the face of the record or proceedings which are claimed to-be invalid the court will not entertain an action to declare such invalidity, and it is only where the claim of the adverse party to the land is valid uponl the face of the instrument or proceeding sought to be set aside, and extrinsic -facts are necessary to be proved in order to establish the invalidity or illegality, that a court of equity will intervene. How, in the case at bar it is claimed that the power of sale contained in the will is null and void upon its face. If •that is the fact, then there is no room for the intervention of a court of equity, ■because it does not depend upon extrinsic evidence. That is the allegation •and the judgment that is asked for. The two cases above cited in no way conflict with this rule. In Butler v. Johnson the fact that the debts were outlawed for the payment of which the executor was about to exercise the power •of sale was a fact extrinsic of the instrument creating the power, and was therefore brought within the rule above mentioned. In the case of Be Witt v. Van Schoyk the intervention of a court of equity was sustained, because, unless •the action of the defendant was restrained, its effect would be to change or •confuse the boundary of two farms, and render their location doubtful, and -open over the land of the plaintiff a right of way through which the public would be allowed to travel,—facts showing that the action against which an injunction was sought would confuse the plaintiff’s rights, which confusion would not necessarily appear of record. It seems to me, therefore, that the •court should not entertain jurisdiction of this action, and that the complaint does not state a cause of action within the rules limiting the invocation of the jurisdiction of a court of equity. The.judgment should be reversed, and the’ •denrurrer sustained.

Daniels, J., concurs.  