
    Millspaugh v. Van Zandt et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 10, 1890.)
    Testamentary Powers—Construction.
    Testator devised land in trust to his executors, to hold it “for the purposes of the trust herein declared for and during the natural life of my said wife, unless before that time the sum of S90 per acre can be realized therefor, or unless, before that time, in the judgment of all my executors, * * * it shall be deemed to be forthe best interest of my said wife and children that the same be sold at a less price, ” and in each case the executors were authorized to sell the land and make deeds thereto. The will further directed: “ When the farm shall be sold as * * if provided, I direct my executors to convert all my estate into cash, and to divide the proceeds into such * * * parts as will give one share to my wife, if then living. ” Held, that the executors’ title to the land, and power to sell the same, did not cease on the death of the wife.
    Appeal from special term, Orange county.
    
      Action for partition by Mary J. Millspaugh against Dewitt Van Zandt, individually and as executor of the last will and testament of Abram B. Van Zandt, deceased, Myres Van Zandt and Catherine Van Zandt, his wife,.Abram P. Van Zandt, Anthony Doyle, and Joseph Millspaugh. Judgment for defendants, dismissing the complaint. Plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Lewis Hasbrouck, for appellant. William Vanamee, for respondents.
   Dykman, J.

This is an action for the partition of real property, and is brought in disregard of a will which undertook to dispose of the property. Abram B'. Van Zandt died seised and possessed of the premises in question in July, 1881, leaving a last will and testament, which was duly proved and admitted to probate in the following month. By his will, after some provisions unimportant here, the testator gave all the residue of his property, which included the farm in question, to his executors in trust for several purposes, and this, among others: “It is my desire and I hereby direct my said executors to hold my said farm for the purposes of the trust herein declared for and during the natural life of my said wife, unless before that time the sum of ninety dollars per acre can be realized therefor, or unless before that time, in the judgment of all my executors hereinafter named, or so many of them as shall be then surviving, it shall be deemed to be for the best interest of my said wife and children that the same should be sold at a less price; and, in each of the several cases above contemplated, I hereby authorize, direct, and empower my said executors to sell my said farm at public or private sale, and give to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance therefor. ” Another object and purpose of the trust was to apply certain income from this farm towards the support and maintenance of the wife of the testator, so long as she remained unmarried. Another provision of the will was this: “When the said farm shall be sold’ as hereinbefore provided, I direct my executors to convert all my estate into cash, and to divide the proceeds into such number of equal parts as will give one share to my wife, if then living. * * *” The executors executed the will, but never sold the farm. They applied the income to the support of the widow until her death, in March, 1886, and now the theory of the plaintiff upon which this action is prosecuted is that the power of the executors to sell the land has ceased, because the power of sale was not exercised during the lifetime of the widow. Our view is directly the reverse. The primary intention and purpose was plainly expressed, to place the title of the property in the executors, in trust, to be held by them for the benefit of his wife during her life, unless sold for $90 an acre, or for some other cause which they might deem sufficient, and on the death of the wife they were to convert the whole property into money, and make a division of the same among the devisees in the manner provided. It follows that the plaintiff has no title, and that the action cannot be maintained. The judgment should be affirmed, with costs.  