
    Thomas. J. Deegan et al., Individually, etc., Resp’ts, v. Charles Wade, Impleaded, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 5, 1895.)
    
    1. Will—Suspension of power of alienation.
    The absolute ownership and power of alienation is not suspended merely because the executor may require a period of time, not measured by lives, in which to execute the power of sale bv a conversion of the land into money. Such result is accomplished only in a case where there are no persons in being by whom an absolute estate in possession can be conveyed.
    8. Same.
    The grantees of a life estate, with a power to alien in fee by. will, can convey in fee by deed, though the instrument, creating the life estate and the power, attempted to restrain and prohibit any conveyance by deed.
    Appeal from judgment of the general term of the supreme court, in the first judicial department, entered upon an order which modified and affirmed as modified a judgment entered upon the report of a referee construing the will of Patrick Wade,' deceased, and passing upon the accounts of the temporary administrator and the executors of a deceased executor.
    
      J. F. C. Blackhurst, for appl’t; Louis V. Booraem and Charles L. Pashley, for resp’ts.
    
      
      Affirming 58 St. Rep. 155.
    
   O’Brien, J.

The testator, Patrick Wade, died October 17th, 1890, leaving a will of real and personal property. Pending a •contest as to the validity of the will before the surrogate, a temporary administrator was appointed. The will was subsequently admitted to probate and the executor named therein qualified and took possession of the estate. He died on the 14th of November, 1891, and the plaintiffs (who are children and legatees or devisees under the will of Wade) were appointed administrators with the will annexed and brought this action. The purpose of the action is two-fold. . The temporary administrator and the executors of the deceased executor were required to account, and a judicial construction of certain provisions of the will was sought. The .special term rendered judgment upon all the questions after a report of a referee. In so far as the judgment related to the accounting, a slight modification was made in favor of the defendants at the general- term, and no one interested in that question has appealed to this court" The modification was obviously correct for the reasons stated in the opinion below. The only appeal to this court is by the infant defendant, Charles Wade, who is interested in the construction to be given to' two provisions of the will devising real estate.

By the third clause of the will the testator devised to the executor a piece of real estate on Franklin street in the city of New York, and directed him “to sell the same at public auction at the city of New York to the highest bidder, at some convenient day and place during the spring months of 1891, and to make, execute and deliver good and sufficient deed or deeds of conveyance for the same to the purchaser at such sale.” The executor was' then to pay over or invest the proceeds for the benefit of certain of the legatees named in the will. This was one of the trusts authorized by-the statute since it was to sell lands for the benefit of legatees. The only objection made to it is that it violates the statute against perpetuities, in that it fixed a time for the sale, so as to suspend the power of alienation for a period not measured by lives. It is obvious that the direction as to the time to sell was .advisory, and, as the learned court below remarked, was intended to facilitate the sale and not to limit or restrain the power of absolute disposition. The executor had the right to the ordinary period of administration, and this direction amounted to nothing more than a request that the sale be made at an earlier day. The .absolute ownership and power of alienation is not suspended merely because the executor may require a period of time not measured by lives in which to execute the power of sale by a conversion of the land into money. That result is accomplished only in a case where there are no persons in being by whom an absolute estate in 1 possession can be conveyed. Roberts v. Corning, 89 N. Y. 288 ; Hope v. Brewer, 136 id 126; 48 St. Rep. 834.

The executor was at all times competent to convey, and the request that the sale be made a few months after the testator’s death was no restraint upon the exercise of that power.

By the fourth clause of the will the testator devised his lot No. 228 Mott street, in the city of New York, “ free and- clear of all incumbrances, with the two houses thereon erected, to my son, Charles Wade, for the term of his natural life, with full power to devise, but with no power to grant or convey the s^me, and, if he shall die intestate, then with remainder over to his heirs; and I devise and direct my executor, hereinafter named, to collect and receive the rents and profits of said number 228 Mott street until my said son shall arrive at the age of twenty-one years, and, after paying the taxes, assessments and the expenses of necessary repairs on the said house, then to apply the balance of said income primarily to the support, education and maintenance of my said son; and, if there shall be any surplus, to add the same yearly to the other moneys invested for him under the provisions of the will; and, when he shall arrive at the age of-twenty-one years, to-pay to him the whole of the accumulated sum, with the interest"

' With respect to this clause the question is, -what estate vested in the devisee, whether an estate for life merely or in fee, and it is governed by the following provision's of the statute concerning powers (1 R. S. 732, 733):

“ § 81. Where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular-estate, for life Or for years, .such estate shall be changed into a fee absolute in respect to the rights of creditors and purchasers, but subject to any future estate limited thereon, in case the power-should not be executed, or the lands should not be sold for the satisfaction of debts.
“ § 82. Where a like power of disposition shall be given to any person to whom no particular estate is limited, such person shall also take a fee, subject to any future estate limited thereon, but absolute in respect to creditors and purchasers.
“ § 83. In all cases where such power of disposition is given,, and no remainder is limited on the estate of the grantee of the property, such grantee shall be entitled to an absolute fee.
“ § 84. Where a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of disposition within the meaning and subject to the provisions of the three last, preceeding sections.”

In Hume v. Randall, 141 N. Y. 499 ; 57 St. Rep. 587, we held that where a grantee of an estate for life takes also a power to-alien in fee to any person by will, and no person other than the grantee of the power has, by the terms of its creation, any interest, in its execution, the power is a general beneficial one : Cutting v. Cutting, 86 N. Y. 522, and, further, that the grantees of the life-estate, with such a power, could convey in fee by deed, although the instrument creating the life estate and the power attempted to-restrain and prohibit any conveyance by deed. That case cannot, be distinguished in principle from this. Here, the devisee had a life estate with power to alien by will. He had the right to the rents and profits, and the estate went in fee to his heirs in case he died intestate. When such powers and incidents attach to a life estate in lands, it is necessarily transmuted into an absolute fee by the terms and the general policy of the statute, and an attempt to restrain the power to convey by deed is inoperative. It was the evident purpose in enacting § 81, above quoted, and the three following sections, to annihilate all limitations and restrictions upon the power of disposition in cases where a life estate with power to alien in fee by will had been granted or devised, exceptas therein specially provided. Where the beneficial interest and general ownership was conferred by the grant or devise, the statute renders inoperative all restrictions inconsistent with the same.

The judgment appealed from should, therefore, be affirmed, but without costs in this court to either party.

All concur.

Judgment affirmed.  