
    Louis Strube, as Executor, Plaintiff, v. Delia Leutzbach, Defendant.
    (City Court of Brooklyn
    General Term,
    April, 1895.)
    Where a will gives a legacy which is equal to the personal estate and directs the division of the residue between certain children named, and also gives the executor full power to sell the estate “to his best knowledge,” a general power in trust to sell the real estate is confided to the executor, with a clearly implied duty to divide the proceeds among the children named.
    Submission of controversy without action.
    Plaintiff contracted to sell to the defendant certain real estate belonging to the estate of his testator, and tendered an executor’s deed with the usual covenants for conveyance and assuring the fee simple of the premises free from incumbrances excepting a mortgage, which the defendant refused to accept, claiming that the plaintiff had no power to sell under the will of testator.
    
      W. W. Butcher, for plaintiff.
    
      John II. Walters (Stephen B. Jacobs, of counsel), for defendant. •
   Van Wyck, J.

This is a submission under section 1279 of the Code of Civil Procedure. The will of Philip Leutzbach gives $800 to his daughter Therese, directs the balance to be divided equally between his three minor children, Therese, William and Frederick, and appoints the plaintiff Struhe his executor, giving him full power to sell said estate to his best knowledge. He left $800 in personal estate, and the balance in real estate. Does this will give the executor good power to sell real estate, is the question we are called upon to answer. We think it is manifest that a general power in trust is confided to the executor to sell the real estate, with a clearly implied duty imposed upon him of dividing the proceeds therefrom equally between these three minor children. Kinnier v. Rogers, 42 N. Y. 531. If the defendant is correct in his contention that this power clause creates a beneficiary power in favor of plaintiff Strabe, vesting an absolute estate in him as the donee of the power, we are satisfied Strube, .after conveying as executor, would be estopped from thereafter setting up any claim to the same in his own right.

Plaintiff is entitled to judgment, with costs.

Clement and Osborne, JJ., concur.

Judgment for plaintiff, with costs.  