
    Guy Haas, Pl’ff, v. Barbara Kuhn, Individually and as Executrix, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 17, 1893.)
    
    Vendor and purchaser — Power op lipe tenant to incumber where THERE IS A POWER OP SALE.
    Where real estate is devised to one for life with a power of sale in the executor, the life tenant takes subject to the power of sale, and an agreement amounting to an incumbrance on the land is operative only until such power is exercised, and a deed by the executor will convey a title free from such incumbrance. The mere fact that the executor and life tenant are the same person makes no difference in that respect.
    Submission of controversy upon an agreed state of facts, in an action to compel defendant to take title to real estate.
    
      F. A. Winslow, for pl'ff; Lorenz Keller, for def't.
   Van Brunt, P. J.

Upon one important branch of this controversy the submission is somewhat uncertain as to the fact admitted, and that is as to the means by which the defendant acquired her life estate in the premises in question. We presume, however, that it was intended to be admitted that she acquired this life estate by the will of her husband, in pursuance of the power of sale contained in which she made the contract with the plaintiff therein mentioned, and we will dispose of the case assuming this to "have been the purport of the admission. The plaintiff seeks to recover $1,000 and interest, and charges for the examination of title herein, because it is claimed that the defendant is unable to give a clear title to certain premises on Essex street which she entered into a contract with the plaintiff to convey. It would appear that by the will of the defendant’s husband, who died in 1877, she was devised this real estate for life, of which will the defendant was executrix, and by which will a discretionary power of sale of all real estate was given to such executrix. In February, 1878, the defendant individually executed an agreement not to erect a wall over or upon certain parts of the premises in question. In October, 1892, the defendant, as executrix, under the power of sale contained in the will, entered into a contract to sell the premises in question free from all incumbrances to the plaintiff. The plaintiff, upon examination of the title, discovered this agreement in regard to building upon the lot in question, and refused to take title, and brought this submission, which was presented to recover the amount paid on account, and the disbursements and charges upon the examination of the title; and the question submitted is whether the premises are incumbered by reason of the party-wall agreement, and the, covenants therein, either during the life of the defendant or for a longer time.

This question seems to be resolved when we consider the nature of the life tenancy of the defendant. The sole title she took under the will was subject to the power of sale therein contained. She undoubtedly could make a contract with reference to building upon this lot during her life which would be binding upon her so long as the power of sale contained in the will was not executed. But as her title during life was subject to the execution of this power of sale, when this power of sale was executed because of the supposed advantage to the estate, such execution related back to the time when the will became operative, and cut off any incumbrances which might be put upon the property by those- persons holding the title subject to the exercise of such power of sale. It would, therefore, seem to be apparent that by the exercise of the power of sale as executrix of the will of her husband the defendant could give a title free and clear from this individual agreement which she made, which was only binding upon her during her life, in case the power of sale was not exercised. It is apparent that this must necessarily have been the result had the life tenant and the executor or executrix of the will been different persons; and the mere fact that the life tenant and the executrix are the same person does not seem to us in any way to restrict powers which might be exercised under the power of sale. We think, therefore, that the deed of the executrix was superior to the agreement of the individual life tenant, and that the plaintiff should be decreed to perform the contract, and pay the costs of this action.

Judgment accordingly.

O’Brien and Follett, JJ., concur.  