
    Behrman v. Von Heyn.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    Testamentary Powers—Sale by Executors—Application of Purchase-Money.
    In an action to compel specific performance of a contract of sale, wherein the validity of plaintiff’s title was denied, it appeared that testatrix devised certain property to her husband for life, remainder to her children in fee, with power to the executors to sell any of the real estate, provided testatrix’s husband should consent thereto, and to execute deeds of the property, and directed that the net proceeds of the sale be invested, and the profits paid to the husband during his lifetime. Plaintiff purchased a part of such land from the executors, and, after paying off a mortgage, paid about one-fourth of the residue of the purchase money to the husband, and the balance to one of testatrix’s children, with the assent of the executors, who executed a deed to plaintiff. The husband consented to the sale. Held, that the executors’ deed passed title to plaintiff, and that she was not bound to see to the application of the purchase money as directed in the will.
    Case submitted on agreed statement.
    Action by MaryS. Behrman against MethaYon Heyn to compel the specific performance of a contract of sale of lands by acceptance of plaintiff’s title, the validity of which was denied by defendant. A case was agreed and submitted; and the facts therein contained, so far as necessary to an understanding of the point in dispute, are stated in the opinion.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Hubert D. Lent, for plaintiff. Smith & Martin, ( Wm. P, Fisher, Jr., and Newell Martin, of counsel,) for defendant.
   Barnard, P. J.

Esther Mary Butler died in 1875, leaving real and personal property. She left a husband and two children. By her will she made the following disposition of her property: “I also hereby further give and bequeath unto my said husband the use, income, and profit to be derived from all my real estate, and the balance of my personal property, for and during Ills lifetime, and on his decease the same to be divided between my children then living, if more than one, and, if only one such child, to have and take the whole of my said estate and property: provided, however, that if any child dies leaving issue, then such issue to take the share his or their parents would have been entitled to have and take if then living.” The will contained a provision that the executors should have full power “to sell any and all my real estate at any time, and on such terms as they may devrn best for the interest of my estate, (provided my husband, if then living, shall consent thereto,) and thereupon to execute and deliver all necessary deeds and other instruments in writing requisite to convey a good and perfect title thereto.” The will provided that the executors invest the net proceeds of the sale, and pay to the husband during his life-time. The executors sold a piece of land under the power to the plaintiff for its full value, and received the money. There was a mortgage on the property, and unpaid taxes and assessments thereon, and these were paid. There was left $357.46, which was paid, $75 to the husband of deceased, and $282.46 to one of the children, with the assent of the executors. The question is whether Mrs. Behrman’s title thus acquired is good. We think it is. The executor’s deed passed the title. The deed of the sons which accompanied it conveyed nothing, as they had only a life-estate; but it xdid not hurt the deed of the executors. The husband expressed his consent to the sale by the deed when the husband was executor as well as husband; but he went further, he joined in the deed with the sons which conveyed his life-estate. The purchaser was not bound to follow the money, or to infer that it was not invested properly, when she paid over the same as directed by the trustee. Belmont v. O'Brien, 12 N. Y. 394. The judgment should be ordered for the plaintiff upon the submitted case, without costs. All concur.  