
    Joseph Williams, Respondent, v. James Williams and Others, Appellants, Impleaded with Ellen Williams and Others, Defendants.
    Fourth Department,
    July 9, 1912.
    Will — power of sale — equitable conversion — execution of power after death of executor — vesting of remainder in children living at death of wife.
    Where a testator devised the use of his homestead to his wife “ so long as she shall live,” and further provided “that after the death of my wife that the homestead be sold and the proceeds be equally divided between my children that are living at that time, share and share alike,” the mandatory power of sale in the will effected an equitable conversion of the . homestead into personalty;
    The executor having died before the execution of the power of sale, an administrator with the will annexed may exercise the power.
    The devise of the land did not become effective until the death of the wife, and then vested only in the children of the testator living at that time.
    McLennan, P. J., dissented, with opinion.
    Appeal by the defendants, James Williams and others, from an interlocutory judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of January, 1912, in an action for partition.'
    The facts are agreed upon. On the 27th day of September, 1897, William J. Williams, a resident of Chautauqua county, died seized in fee of the lands described in the complaint. He executed his last will and testament, which was duly admitted to probate, and left him surviving his widow, who died in 1909 and prior to the commencement of this action; and also four children and descendants of a deceased daughter. One son, Thomas, died intestate in 1902, survived by his widow and several children, of whom the plaintiff is one.
    The testator at the time of his death was eighty-three years of age, and executed his last will and testament five years before that event. By that instrument he gave the use- of his homestead, comprising about fifteen acres of land, and the premises involved in this action to his wife “so long as she shall live.” The 2d clause of the will is as follows: “I declare that after the death -of my wife that the homestead be sold and the proceeds be equally divided between my children that are living at that time, share and share alike. ”
    He named an executor, who duly qualified, but is now dead; and no administrator with the will annexed has been appointed. The rights of the parties depend upon the construction to he given to the last will and testament of the testator. The County Court held that the estate vested irrevocably upon the death of the testator, so that the children of Thomas Williams acquired the interest of their father.
    
      George H. Ansley, for the appellants.
    
      Daniel A. Deed, for the plaintiff, respondent.
    
      Joseph C. White, special guardian for Louiza Emaline Farrel, a lunatic.
   Spring, J.:

There is no devise of the little estate left by the testator to any of his children. He preferred to have the premises sold and the avails distributed after the death of his widow and, therefore, directed that such mode be adopted. The gift was of money, not of land; and because of the direction of the testator to sell the real estate, it became personal property. In no other way could the distribution of the money be made, and so there was what' is known as an equitable conversion of this small,farm into personalty. (Meakings v. Cromwell, 5 N. Y. 136; Greenland v. Waddell, 116 id. 234, 240 et seq.; Cahill v. Russell, 140 id. 402; Salisbury v. Slade, 160 id. 218.)

The will was drawn by a farmer, and it is a reasonable inference that he did not appreciate the importance of endowing the executor with distinct authority to sell the premises. The omission, however, does not impede the primary purpose of the testator to convert the land into personal estate. The sale was necessary in order to make effective the bequésts and the implied power to sell and distribute was consequently vested.in the executor. (Cases cited.)

yo trust is created and no trustee is required in order to sell the land. The will itself converts the property into personalty, and the executor simply disposes of it like any other personal property in' his custody.' Conversion into money is necessary that the gift may be made as the testator designed, and that change, of course; is a common one in the settlement and distribution of decedents’ estates.

Nor does the death of the executor before executing the power of sale prevent the consummation of the intention of the testator. There was no discretionary authority to sell. The direction was mandatory, positive, and the sale of the land was essential to the distribution of the estate. The executor, therefore, possessed the power to sell by virtue of his official authority, and no special or personal confidence was reposed in him separate from his office. An administrator with the will annexed could sell the land and distribute the avails in compliance with the imperative direction of the testator. (Code Civ. Proc. § 2613; Clifford v. Morrell, 22 App. Div. 470; Carpenter v. Bonner, 26 id. 462; Ayers v. Courvoisier, 101 id. 97; Mott v. Ackerman, 92 N. Y. 539, 552.)

Or, it may be, a person appointed by the court for that purpose could exercise the power. (Royce v. Adams, 123 N. Y. 402, 405; Cooke v. Platt, 98 id. 35.)

The 2d clause of the will postpones the sale of the land until after the death of the wife of the testator, and the division is among his children that are living at that time, share and share alike.” It is the claim of the respondent that the title became absolutely vested at the time of the death. If so, Thomas Williams was one of the owners and his interest; on his death, passed to his heirs at law, including the plaintiff. If there was an equitable conversion of the real estate into personalty there was no devise and no vesting in any of the beneficiaries. In the second place, even if the land retained its identity as such, I think the clear intent of the testator was to limit the ultimate beneficiaries to those living at the death of the wife. If there was a vesting it was subject to be divested when the period of division was reached. To be sure, the construction is favored which permits the vesting of devises as closely as possible after the death of the testator.. (Connelly v. O’Brien, 166 N. Y. 406; Biker v. Gwynne, 201 id. 143, 149, Van Deusen v. Van Deusen, 138 App. Div. 357.) The rule is a technical canon of interpretation and subordinate to the fundamental principle that the intention of the testator is the dominating guide in construing his will. Li the cases where the technical rule has prevailed the language employed in the will was ambiguous, and the rendering in conformity with that rule apparently fulfilled the purpose of the testator as well as any that might have been adopted. (See cases cited.)

In the will we are considering the intention of the testator is explicitly stated and limits the division of his property to the children living at the death of .his wife. While the testator recognized equal obligations to his children, evidently he did not wish any further carving up of his small estate.

We are well within the authorities in holding even if there Was a devise of the land it did not become effective until the death of the wife, and then vested only in the children of the testator living at that time. (Patchen v. Patchen, 121 N. Y. 432; Wright v. Wright, 140 App. Div. 634.)

The conclusion reached, therefore, is that the plaintiff has no title in the premises described in the complaint.

The interlocutory judgment should be reversed and the complaint dismissed, with costs to the appellants in this court and to the appellants and special guardian in the court below.

All concurred, except McLennan, P. J., who dissented in an opinion.

McLennan, P. J. (dissenting):

As I interpret the meaning of the will which is the subject of this litigation, the testator gave to his wife by absolute bequest all his household goods and personal property to be her own and in lieu of dower. He also gave to her the use of his homestead so long as she should live' which, as appears, consisted of about fifteen acres of land situate in the village of Sheridan, IST. Y. By the 2d provision of the will it is provided:

“ Second. I declare that after the death of my wife, that the homestead be sold and the proceeds be equally divided between my children that are living at that time, share and share alike.”

Eeally, the only question involved here is whether the words at that time,” used in the 2d clause of the will, refer to the time of the death of the testator or to the' time of the death of his wife. It seems clear, under the authorities, that those words refer to the time of the testator’s death rather than to the túne of the death of his wife, the life tenant. If not, it is easy to imagine a situation where the testator would have died intestate as to the homestead. In that case this would certainly result if all his children had died between the time of his death, which occurred on the 27th day of September, 1897, and the death of his widow, which occurred on the 11th day of October, 1909, a period of upwards of twelve years. Can it be claimed that under the language employed it was intended by the testator that he should die intestate in case his children had all died between his death and the death of his widow, the life tenant ? I think such, under the authorities, is not the fair interpretation of the will but that, on the contrary, the interpretation of the learned surrogate is correct; that the words “at that time,” used in the 2d paragraph of the will, refer to the time of the testator’s death; that the property vested at that time, subject only to the life use of the widow, and that the children living at the time of her death, or the issue of such children who had died, took an equal share of the proceeds of the sale of such homestead; that the provision directing that the property should be sold and that the proceeds should be distributed was only prescribing a method of procedure and did not in any maimer affect the rights of the testator’s children in the premises. It seems to me inconceivable that it was the intention of the testator that if three of his four children should die leaving issue before the death of his wife and only one of such children should survive, perhaps, without issue, such survivor should take the whole of the homestead property to the exclusion of the issue of the other children.

In the case of Lewis v. Howe (174 N. Y. 340) one of the questions at bar was whether a remainder vested in an adopted daughter at the death of the testator or whether a devise to her was defeated by her death before the death of the life tenant. Judge O’Brien, writing the opinion for the court, said (pp. 346, 347): “The question now is whether the remainder vested in the adopted daughter at the death of the testator or was the devise to her defeated by her death before the life tenant ? Except for the argument of the learned counsel • for the plaintiff I should suppose that such a question was not fairly debatable at this day, but he insists that it was defeated, and as to the remainder the testator died intestate. The clause contains a clear devise of a vested remainder in words denoting. a present gift, since he says ‘ I give. ’ The words ‘ to vest in her in fee upon the decease of my said wife ’ denote the time of possession and enjoyment. This clause of the will may be paraphrased as follows, in brief terms, and the meaning and legal effect will be clear: ‘ Subject to the power of sale contained in the first clause, I give to my adopted daughter the home where I now reside, to have and to. hold forever, possession and enjoyment to vest upon the decease of my said wife.’ The adopted daughter had a vested remainder under the will, which, upon her death, passed to the defendants, her heirs, subject to the life estate of the widow. This conclusion cannot be avoided without violating the plainest and most important rules of construction. It is elementary law that the courts should adopt that construction, whenever possible, which will avoid intestacy and which is' most favorable to the vesting of the estate devised, and which will avoid the disinheritance of the remainderman who happens to die before the. termination of the life estate. * * * (Matter of Russell, 168 N.Y. 175; Connelly v. O’Brien, 166 N. Y. 406; Matter of Brown, 154 N. Y. 313; Hersee v. Simpson, Id. 496; Corse v. Chapman, 153 N. Y. 406;. Campbell v. Stokes, 142 N. Y. 23; Haug v. Schumacher, 166 N. Y. 506; Nelson v. Russell, 135 N. Y. 137; Moore v. Lyons, 25 Wend. 119.) In the terse language of Chancellor Kent: ‘It is not the uncertainty of enjoyment in the" future, but the uncertainty of the right to that -enjoyment that makes the difference between the vested and the contingent-interest.’ (2 Kent’s Com. 206.) To hold that the testator intended by this clause of his will that no estate should vest in the adopted daughter except in the event that she survived the widow, and in case she did not that he intended to die intestate as to this property, would -be pushing construction to the verge of 'absurdity. It would be a new principle in the construction of wills to hold that a man who had deliberately created a fife estate in lands for the benefit of his widow and had limited upon that a remainder to his adopted daughter, all expressed in clear and appropriate words, nevertheless entertained the secret intention of dying intestate merely because he added to the devise of the remainder the words to vest on the death of my wife, ’ which expressed nothing more than what the law would do in case he had not used these words at all, since only upon the happening of that event does any such remainder ever vest in possession and enjoyment.”

As before suggested, if the words “ at that time ” in the 2d clause of the will are given the meaning suggested by the majority of the court, then it must follow, if all testator’s children had died before the death of the widow, that he, the testator, would have- died intestate as to the homestead property, and also that if all of said children save one had so died, such survivor would have taken the avails of all of such homestead property to the exclusion of the issue of the deceased children. It does not seem to me under the authorities that that can be the proper construction of that provision of the will. I think the learned surrogate properly held that the words used in the 2d clause of the will, “ at that time,” had reference to the time of testator’s death and that the ownership of the homestead vested in his children as of that date and that at the termination of the life estate each of the children then living and the issue of those who died were entitled to participate in the distribution of the proceeds of the sale of such homestead.

Assuming, for the purposes of this discussion, that the words " at that time ” referred to the time of the death of the widow, it is my opinion that those words had reference only to the time of the possession and enjoyment of the devise and that the ownership of the homestead property vested in the children at the time of the death of the testator, subject only to the life estate of his widow..

I, therefore, conclude that the decree of the surrogate was correct and should be affirmed, with costs.

Interlocutory judgment reversed and complaint dismissed, with costs in this court to appellants and with costs in the court below to the special guardian and to the appellants.  