
    James Sumner Draper, Plaintiff, v. William F. Montgomery, Defendant.
    
      Power of sale to executors “ and to any two of them ”—it may be exercised by one of three executors, who alone qualifies under such will.
    
    A will provided as follows : “ I appoint and constitute the aforesaid Gansevoort de W. Hurlbut, Paul F. Cooper and James Fenimore Cooper executors of this " my last will and testament-, and I give to them and to any two of them acting in any matters as such executors or as such trustees as aforesaid, full power and authority to do and transact any business pertaining to their duties. * * * ; also to sell and convert into personal estate any portions or the whole of the real estate so held in trust, whenever in their judgment the most advantageous time shall have arrived for making such sales * * *; also as such executors or-as such trustees, or in both capacities, to make, seal, execute and deliver any and all necessary and proper deeds, grants, conveyances or other instruments in'and about the sales, leases or other transactions; * * * the act'of a majority of the said trustees or executors shall be effectual and as fully and legally binding and operative as if all said trustees or executors had been joined therein.”
    Two Of the executors and trustees nominated in the will renounced their appointment and refused to act, and the third executor and trustee alone qualified. Held, that, notwithstanding the phrase “and to any two of them,” the single ■ executor and trustee who qualified had under section 2642 of the Code of Civil Procedure power to exercise the power of sale conferred by the will.
    Submission of a controversy upon an agreed statement of fact's pursuant to section 1279 of the Code of Civil Procedure.
    The plaintiff contracted to sell to the defendant, who agreed to buy, a parcel of land known as lot No. 36, on Hurlbut street, Albany, N. Y., for the sum of one hundred and twenty-five ($125) dollars, upon which contract defendant paid twenty-five ($25) dollars -on account of the purchase price, the balance to be paid on delivery of the deed; and in said contract it was agreed that the title thereto was to be perfect. The plaintiff tendered a deed, sufficient as to form, but the defendant refuses to take title or pay the balance of the purchase price, on the ground that plaintiff was not seized and possessed of the.same in fee simple absolute.
    The plaintiff’s title to said land was received under a. warranty deed dated February 13, 1903, executed by Charles B. Dodge and wife; said Dodge received his title thereto under a warranty deed dated December 30, 1899, from Gánsevoort de W. Hurlbut (and wife), individually, and acting as sole executor of and trustee under the last will and testament of Elisha P. Hurlbut, deceased.
    The sole ground upon which defendant refused to accept title to the land in question was, “ that the deed of conveyance made by Gánsevoort de W. Hurlbut, individually, and as sole executor of and trustee under the last will and testament of Elisha P. Hurlbut, deceased, to Charles B. Dodge, * * * was not sufficieii't to convey the title other than the individual interest of said Gansgvoort de W. Hurlbut, * * the question arising thereon being whether the said Gansevoort de W. Hurlbut, the sole qualifying trustee and executor, had power to convey the title to said land under the provisions of the/will of his testator.
    The provisions of the said will relating to the appointment of executors and trustees, and their power to convey the real property of the estate, are as follows, to wit: “ I appoint and constitute the aforesaid Gansevoort de W. Hurlbut, Paul F. Cooper and James Fenimore Cooper executors of this my last will and testament, and I give to them and to any two of them acting in any matters as such executors or as such trustees as aforesaid, full power and authority to do and transact any business pertaining to their duties * * *; also to sell and convert into personal estate any portions or the whole of the real estate so held in trust, whenever in their judgment the most advantageous time shall have arrived for mating such sales * * *; also as such executors or as such trustees, or in both capacities, to make, seal, execute and deliver any and all necessary and proper deeds, grants, conveyances or other instruments in and about the sales, leases or other transactions; * * * the act of a majority of the said trustees or executors shall be effectual and as fully and legally binding and operative as if all said trustees or executors had been joined therein.”
    On the probate, of said will, Paul F. Cooper and James Fenimore Cooper renounced their appointment and refused to act, and Gansevoort de W. Hurlbut alone qualified as. executor and trustee.
    
      Willimn E. Woollard, for the plaintiff.
    
      Leopold Minkin, for the defendant.
   Smith, J.:

Section 2642 of the Code of Civil Procedure in part provides: “ And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify shall be equally valid as if the other, executors or trustees had joined in such sale.” If in this 'will the words, “ and to any two of them/’ had been omitted the right of this executor and trustee to-give a deed would see'm to be clearly ¡ assured by the -statute: Unquestionably -the testator had the right to provide that ho deed should be given except by at least two of his trustees. ■ If such were 1ns intent the title which the plaintiff offers is not a good title and the defendant should have judgment. We are of the opinion, however, that the words quoted were not intended as any restriction upon the-powers of the. trustees under the law, but rather'as an enlargement of their powers by providing that a deed should be valid if given by two only while three were ■ acting as trusteed. Were it not for this provision if the three trustees had qualified a valid deed would require the signature of all the trustees: "To make unnecessary the strict requirement of the law and to the end that the trust which he created might be the more easily executed these words were included. It is. stated" upon the argument that the tes-tator was a lawjeii and also that upwards of one hundred conveyances had been made by this single trustee. " We deem it extremely improbable that the testator intended uponlthe renunciation of two of his trustees to leave his remaining trustee practically stripped of the power to beneficially execute the trust. There is -no clearly-indicated intention to make inapplicable the "provisions of section 2642 of the Code of .Civil Procedure quoted. Without the- intention só. to do clearly manifested the general rule of law as expressed in this section must prevail,

Two cases are" cited by the defendant to sustain his contention. The first is the case of Herriott v. Prime (87 Hun, 95). The other is the case of Hyatt v. Arguero (14 Civ. Proc. Rep. 286). In the Harriott case power to sell and dispose of the estate was given to two trustees, “In such manner and. on such terms as they shall ■jointly consider beneficial and for the interest of my said estate,, with full power to convey by deed joi/ntly and not singly, as I might or could do if living.”" In the Hyatt case the authority to sell any part of his real estate was given “In their joint discretion — that is to say, one is not authorized to -sell or exchange without the consent and co-operátion of the other — and to give valid, deeds of .the same to purchaser.” In these two. cases the provisions of the will were construed as clearly expressing the intention of the testator that the power thus given should not in any event be exercised by one only of his trustees.

Judgment should be directed for the plaintiff.

All concurred.

Judgment directed for the plaintiff, without costs.  