
    William H. Simmons, Respondent, v. James Taylor, Appellant.
    
      Life estate in a husband with power, if necessary to use the principal, to sell■—right of an administrator with the will annexed, after the removal of the husband as executor, to sell,
    
    A testatrix, after providing for the payment of an annuity, gave all her estate, both real and personal, to her husband for and during his life, with power to use, in addition to the income thereof, “whatever portion of the principal of my said estate may be necessary for his comfort and convenience at any time during his life, in providing for his necessities, in case said income shall at any time he insufficient for that purpose.” After the payment of the said annuity, after the death of her husband, and after the payment of a legacy, the residue of her estate, both real and personal, it was directed, should be divided among certain relatives. A subsequent clause provided, “In order to carry out the provisions of this my last will and testament according to their true intent and meaning, I hereby authorize and empower my executor hereinafter named to sell and. convey any and all the real estate of which I may die seized and possessed, upon such terms and' at such times as to him shall seem meet and proper, and I expressly direct and empower him to make such sale at any time he may deem it for the best interests of my estate.” She then appointed her husband the executor of her will.
    
      Held, that an administrator with the will annexed, appointed after the removal of the husband as executor, was not, during the husband’s life, vested with a power of fcale which was valid as against a purchaser from the husband, after his removal as executor, of his interest in real property left by the testatrix.- ~
    Appeal by the defendant, James Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 2d day of December, 1896, upon the decision of the court rendered after-a trial at the Ulster Trial Term before the court without a jury.
    
      
      James Edward Grayhill, for the appellant.
    
      John J. Linson, for the respondent.
   Ltiroorr, J.:

Ejectment. Frederick E. Langford is the real plaintiff and sues in .the name of his grantor, William BL Simmons, under section 150.1 of the Code of Civil Procedure. - Simmons derived title under the will of his wife, of which he was also the executor, with power of sale; but before lie conveyed to Langford, he was removed- by-the surrogate- and 'John S. Blinldey, a creditor of the 'testatrix,. was. appointed administrator with the will annexed, and he,, assuming to exercise the power of sale given to the executor by the will, conveyed the premises to the defendant; afterwards Simmons conveyed to Langford,' hence ■ the conflicting titles.

If Ili-nkley had full power of sale, then the defendant’s title is good. If he had not, • then Simmons had'an estate, in the' land which he Could convey to Langford. The trial court held that he had a fee. . - ' ;

Sally. A. Simmons, the wife of the plaintiff, died November 22,, 1890, seized in fee of the premises in -question, leaving a last will and testamént, which was duly admitted to- probate, by which she ■ first gave, after the payment of her lawful debts, to Ruth Redmond-, her mother, sixty dollars annually during her natural life, to be paid to her by her executor, and then provided:

“Second. After the payment of the foregoing annuity to said Ruth Redmond, I give, devise and bequeath all my estate, both real-, and personal, and wheresoever situate, to my husband, William BL Simmons, for and during his natural life, with, power and authority to use,. in.addition- to the increase and income thereof, whatever portion of the principal of my said estate may be necessary for his comfort and Convenience at any time during hi's life in providing for. his necessities in case said income shall at any -time be insufficient for that purpose.' . . •

Third. After the death of my said husband, William. II. Simmons, I give and bequeath to William Henry Redmond the sum "of three hundred ($300.) dollars in consideration of his kindness to my mother.”

By the 4tli, 5th, 6th and 7th provisions of the will, “ after the payment of said annuity to my said mother, the death of my said husband, and the payment of said legacy to William Henry Redmond,” she disposed of the next residue and remainder of my estate, both real and personal,” among her brothers, sisters, nephews and nieces, and then thus provided :

“ And in order to carry out the provisions of this my last will and testament, according to their true intent and meaning, I hereby authorize and empower my. executor, hereinafter named, to sell and convey any and all the real estate of which I may die seized and possessed upon such terms and at such times as to him shall seem meet and proper, and I expressly direct and empower him to make such sale' at any time he may deem it for the best interests of my estate.

Likewise I make, constitute and appoint my said husband, William H. Simmons, of Delhi, aforesaid to be my executor of this my last will and testament, hereby revoking all former wills by me made.”

It is plain that the plaintiff took 'a life estate under the will, and also whatever more should be “ necessary for his comfort and convenience at auy time during his life in providing for his necessities in case said income shall at any time be insufficient for that purpose.” The testatrix, in extending her bounty to her husband beyond a mere life estate, limited that extension to what should be “ necessary for his comfort and convenience,” not generally and without limit, but ■“ in providing for his necessities,” and then only “ in case said income shall at any time be insufficient for that purpose.” This income was expressed to be of both real and personal estate. How much personal estate there was does not clearly appear, since the plaintiff, as executor, filed no inventory and left a considerable amount of the debts of the testatrix unpaid; the inventory filed by the administrator, with the will annexed, January 6,1893, amounted to $204.61. The testatrix did not expect that he would consume the entire corpus of her estate, otherwise she would not have made the elaborate provisions for the distribution of the next residue and remainder of my estate, both real and personal,” among her brothers and sisters, nephews and nieces, “ after the payment of said annuity to my said mother, the death of my said husband, and the payment of said legacy to William Henry Redmond.” Whether Ruth Redmond survived the testatrix does .not appear. ' The case-in respect to the quantity of the estate taken by the husband is somewhat like Rose v. Hatch (125 N. Y. 427) and Swarthout v. Raner (143 id. 499).

In the case first cited the plaintiff claimed title to the premises devised to the husband, who was also the executor of his deceased wife’s will* by. virtue of a sheriff’s deed given upon an execution. sale thereof under a judgment against the husband of a date earlier than the husband’s conveyance to the defendant, which conveyance was given for .the purpose of paying the testatrix’s debts, .the husband having full power of - sale. In that case, as in this,, the husband was given a' life estate, with the right to use so much of the corpus thereof as he might need for his “ personal wants and necessities in providing for his support and livelihood,” and restricting the same to such use, but giving him the power to determine -respecting the same. It was -held' that the- husband did not take a fee, but a life ■estate in the. premises, with the power to use so. much of the- corpus thereof as might be required- for his personal wants and necessities; but that the power of sale was valid-, and as it was exercised for the purpose of paying the debts of the testatrix, the .title thus givenjby him to defendant was superior to that obtained by the plaintiff npon .an execution sale against him-. ' '. . :.

- In the second case the husband devised all his property, real and personal, -to his wife “ to have and to hold for her .comfort and support * * * if she needs the'same during her natural lifetime, and then provided after her death for the ultimate disposition of $1,0Q0 “if there is enough of my. property .left-at the death-of- my wife.” The-court held that this was a devise to the wife of more than a life estate, but of less than a fee. The wife mortgaged the real estate and soon after died, and the question before the court was whether the heirs of- the husband could attack this mortgage. The court held they could by proving affirmatively that it was not ' given tq provide for her comfortaud support; that” when she gave this mortgage she either honestly needed its proceeds and did what she had a right to do, or she committed a fraud and perpetrated without authority an illegal act intended to injure the heirs at law-.”

Apart from the power of sale given to the plaintiff by the testatrix Mrs; Simmons, it should in like manner be -held that, she gave the plaintiff something more than a life estate and something less than a fee, but how much more than a life estate is not determinable in his lifetime, since until after his death it cannot be known how much of the corpus of the estate “ may be necessary for his comfort and convenience * * * in providing for his necessities, in case said income shall at any time be insufficient for that purpose.” This question may be relegated to the residuary devisees and legatees. They are not now before the court.

But the will ..gave to the executor “ hereinafter named,” namely, the plaintiff, full power of sale “ in order to carry out the provisions of this my last will and testament according to their true intent and meaning * * •* upon such terms and at such times as to him shall seem meet and proper * * * at any time he may deem it for the best interests of my estate.”

If the plaintiff had continued to he the executor it would be presumed in favor of his grantee, Langford, as in the case of Rose v. Hatch, that he made the sale in pursuance of the power and discretion confided to him in the will, and his grantee would have taken a fee. (1 R. S. 732, 733, §§ 81, 85.)

But before he conveyed to Langford he was removed as executor, and thus his powers as executor ceased, and he had no power to convey any greater estate than was devised and bequeathed to him. ILinkley was ap23ointed administrator with the will annexed. If the power of sale thereupon became vested in him, then the qwesunrption is that he exercised it in due course of administration and that the defendant’s title is good, and that whatever title the 23lain-tiff had was subject to the exercise of this 2ower, for a devise of title may be made to one 2>erson subject to a 2>ower. of sale in another. (Crittenden v. Fairchild, 41 N. Y. 289.)

The statute provides that administrators with the will annexed “shall have the rights and 2>owers and be subject to the same, duties as if they had been named executors in such will.” (2 R. 8. 72, § 22.) This provision is" strictly construed. Whatever the executor must do under the will the administrator may do. Whatever else the executor may or may not do under the will according to his discretion, or as his 2>ersonal interests may be affected, the administrator cannot do. •(Mott v. Ackerman, 92 N. Y. 539, 552; Cooke v. Platt, 98 id. 35.)

There is nothing on the face of the will making it imperative upon the executor to sell the estate. It might or might not become necessary. It might become wise although unnecessary. It. is pretty clear that, after the death of the plaintiff, whether the corpus of the estate should be depleted or not by-the plaintiff’s necessities, that a sale would be necessary in order to effect the distribution then to be made. It might be' wise for the plaintiff to sell it and so invest it that, whether much or little of it remained, it could then be easily divided. It was thus the will invested him with a discretionary power to sell or not in his lifetime as to him should “ seem meet and proper.” We do not think the administrator became vested with the power of sale.

It follows that the administrator’s deed to the defendant conveyed no title in the premises; that the plaintiff’s deed to Langford con- ‘ veyed an estate therein for ■ the plaintiff’s life, subject to whatever liens thereon the due course of administration of the testatrix’s estate may -establish, and liable to -be so augmented as to embrace the equivalent of whatever portion of thcorpus of the estate above its income shall prove to be necessarily applied to the comfort and convenience of the plaintiff. But it does not now appear that the plaintiff, who is still living, will ever be entitled to more than a life estate in the premises or their proceeds.

The judgment should, as between the parties, declare that Lang-ford has an estate in the premises for the life of the plaintiff (Code, Civ. Proc. § 1519), and as -thus modified be affirmed, with costs.

All concurred.

Judgment modified so as to declare that Langford has an estate in the premises for the life of the plaintiff (Code Civ. Proc. § 1519), and. as thus modified affirmed, with costs.  