
    Edward S. Burtis, Plaintiff, v. Frederick K. Trowbridge, Defendant.
    First Department,
    January 20, 1911.
    Will construed — power of sale, when not discretionary — power .of substituted trustee.
    Where a testatrix gave all her property to her executor eo nominee in trust to pay debts and legacies, with direction to hold the residue and pay the income to her husband for -life with remainders over, and there were no debts and the personal property greatly exceeded the legacies, a power given to the executor eo nominee to “ sell * * * and do all acts to carry out and execute' the provisions and trusts ” is not discretionary and passes to a substituted trustee who can convey a good title.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Lincoln G. Backus, for. the plaintiff.
    
      David B. Ogden, for the defendant.
   Miller, J.:

Elizabeth B. Strong died on the 28th of April, 1885, leaving a last will and testament, duly admitted to probate in the county of New York, in and by which she gave all her property to her executor eo nomine, in trust to pay debts and two legacies of $200, and to hold and invest the residue, and the proceeds thereof," and to collect and receive the interest and income thereof and apply the same to the support and maintenance of liei* husband during his life and, on his death,, to' convey' “the principal” to his heirs and next.of kin. She gave to her executor,' eo nomine, “ full power to sell and convey any and all property real and personal,” and “ do all acts to carry out and execute the provisions and trusts ” of her will. The executor named in the will qualified and acted as executor and trustee Until December 6, 1901, when,-upon his own petition, he was discharged and one David Levy was, on October 24, 1902, appointed substituted "trustee, and entered upon the discharge of his duties. Thereafter he conveyed the real property owned by the testatrix at the time of her death to one Annie Walters, and by mesne conveyances, whatever title was thus conveyed passed to this defendant. The testatrix left more than sufficient personal property to pay the debts and funeral expenses, and -the trustee named in the will turned over to his successor the sum of $5,968.51. The husband died on the 25tlx bf July, 1906, leaving the plaintiff his sole next of kin’ and heir-at-law.

The question involved is whether the -power of sale was discretionary, or whether it was coupled with the trust and survived the payment of debts and legacies. The mere fact that it was given to the executor eo nomine is of no consequence because nowhere in the will is the word “ trustee ” used. The property was given to the executor in trust for three purposes, two of which were in their nature executorial. But it is manifest that the testatrix did not anticipate the exercise of the power of sale either to pay debts or legacies, as she had no debts, and left personal property many times in excess of -the two small legacies. The trust for the third purpose was to continue for an indefinite time, i. <?., during the life of the husband, and the testatrix may well have anticipated that, in the execution of it, it might become convenient or necessary to sell the real estate. At any rate, by a process of elimination it becomes evident that that was the only purpose for which the power could have been given. It necessarily follows that the power passed to the substituted trustee, and that his grant effectually conveyed the title. (Lahey v. Kortright, 132 N. Y. 450.)

The defendant should, therefore, have judgment in accordance with the terms, of the stipulation, with costs.

Ingraham, P. J., Lahghlin, Clarke and Scott, JJ., concurred.

Judgment ordered for defendant, with costs. Settle order on' notice.  