
    William Scott, Plaintiff, v. Henrietta L. Douglas et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1903.)
    Partition — Equitable conversion — Practical construction of a decree — Reconversion.
    A mandatory direction to executors to sell real estate effects an equitable conversion of it into personalty and the power of sale passes to administrators with the will annexed, but a mere discretionary power does not.
    The practical construction put upon a decree, construing a will, by the parties to the decree should be followed when not unreasonable.
    In order to effect a reconversion there must be unanimity of intention among all the parties in interest and it must be shown in a manner satisfactory to the court.
    Action for partition.
    
      John W. Ingram, for plaintiff.
    Frederick W. Sherman, for defendants.
   Bischoff, J.

The question presented is whether, as to parcels Bos. 2 and 3, the parties hold as tenants in common of real estate as distinguished from a common ownership of personalty. The title is derived through William Scott, deceased, and it is the contention of certain of the defendants that, under the provisions of his will, there resulted an equitable conversion of this real estate; the plaintiff, on the other hand, taking the position that there was no equitable conversion and that, assuming the contrary, a reconversion had taken place by agreement of the parties.

In its practical aspect, the question whether there was or was not an equitable conversion depends upon the presence or absence of a mandatory direction to the executors to sell these parcels, since, with the discharge of the last surviving executor, a mere discretionary power to sell would not pass to the administrators with the will annexed, and an equitable conversion cannot be ad- ■ judged upon the strength of a discretionary power of sale, the exercise of which is not essential to the scheme of the will. Matter of Tatum, 61 App. Div. 513.

As to these two parcels, however, there was an absolute direction to sell, and the argument for the plaintiff that this direction ceased to affect parcel Bo. 2 is not found to be forceful.

This parcel consisted of premises which were made the subject of a special devise, involving a sale by the executors and final distribution after the death .of certain children of the testator, to one of whom the executors were directed to make a lease at a fixed rental. In an action brought for the construction of the will it was in effect determined that so much of this devise as postponed the sale to the death of children other than the one child to whom the lease was made was void as in contravention of the statute against perpetuities, but the validity of the provision for the lease, and, to this extent, for the postponement of the sale and distribution, was upheld, so far as the decree expresses anything to the contrary, and this has been the practical construction adopted by the parties in the management of the estate.

The plaintiff contends that the decree held the provision for the lease itself void, and claims, accordingly, that there remained nothing for the operation of the special devise, and that this parcel was to be treated as part of the general estate, subject only to the general discretionary power of sale contained in the will. Eo reason is suggested why the court should have declared this first postponement of alienation void, and the decree distinctly referred to the numbered clause in the will which was deemed to be invalid, a clause which affected only the attempted excessive postponement. True, the words of the decree would seem to describe, this clause inaccurately, but I must take the specific reference to the clause itself as controlling and as pointing to the more probable meaning of the court, and I fail to find sufficient probability that the intention was to affect a clause of the will other than that referred to. The parties have so understood the decree, as their continued attitude shows, and their understanding appears to have been the more reasonable one.

I must hold, therefore, that the mandatory direction for a sale, as contained in this devise, remained operative, and I do not find that the direction was qualified by the words in the same and like manner as my other real estate is directed to be disposed of and applied.” This reference followed a direction to distribute and must be taken to relate to the disposal and application of the proceeds of a sale, not to the exercise of discretion in the making of the sale, which discretion could be exercised under the general provisions of the will.

I am not inclined to hold that there was an agreement between the parties which resulted in a reconversion of these parcels. Tor the purposes of such a result there must be unanimity of intention (McDonald v. O’Hara, 144 N. Y. 567-569) and this is wanting. Entries made by the executor in his books, as to the manner in which he received and paid out moneys, afford no actual proof that there had been an agreement to alter the status of this property, nor do the acts and statements of one of the parties bind the others as to the fact of the intention or understanding of all. So far. as there was any agreement between the parties, it excluded this property, and several of the parties, including infants, have not been shown satisfactorily to have assented to the alleged reconversion as to these particular parcels.

I conclude that the power of sale, as to parcels Eos. 2 and 3, survived to the administrators with the will annexed.

Torm of decision and judgment may be presented accordingly.

Judgment accordingly.  