
    THOMAS J. HYATT, as Executor, etc., v. JOAQUIN M. AGUERO.
    
      Disci'alionarij power of sale—when cannot be executed by single executor.
    
    A will contained the following clause: “I hereby authorize my said executors to sell all or any part of my real or personal estate at any time in their joint discretion—that is to say, one is not authorized to sell or exchange without the consent and co-operation of the other—and to give valid deed to the purchaser.” One of said executors renounced his right to letters testamentary.
    
      Ilehl, that the remaining executor, who qualified, could not execute the above power, solely, notwithstanding the provisions of § 2642, Code Civ. Proc.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 20, 1888.
    Submission of case, under § 1279, of the Code of Civil Procedure.
    The facts appear in the opinion.
    
      Peck & Mason, for plaintiff :—
    The only question involved is, did the plaintiff have authority to convey the said property under the aforesaid power of sale, H. L. Horton not joining in said conveyance and having renounced his right to join in the administration of the said estate. The law on this subject has remained substantially the same since the original revision of the statutes in 1828-29, and is contained in § 55, Title 4, chap. 6, part 2, Revised Statutes (original edition).
    Taylor v. Morris, 1 N. Y. 349; Humbert v. Wurster, 22 Hun 405; Leggett v. Hunter, 19 N. Y. 445. This does not seem to have been altered or amended in any way until 1883, when an addition was made by § 2642 of the Code of Civil Procedure; The courts have uniformly interpreted this section of the Revised Statute so as to give effect to discretionary powers of sale vested in executors or trustees jointly in case any of them shall die or fail to qualify by allowing the acting executors or trustees to execute the trust. Sharp v. Pratt, 15 Wend. 610; Sherwood v. Stevens, 4 Den. 399 ; Howe v. Raymond, 3 Hun 44. “The effect of a disclaimer where there is a co-trustee seems to be to vest the whole legal estate in the other trustee, and he may execute the office, even when connected with a power, without the concurrence of the co-trustee.” 3 Redfield’s Lem of Wills, 611.
    
      Bailey & Sidlivan, for defendant:—
    The condition attached to the power is a valid one. Kissam v. Dierkes, 49 N. Y. 602. The testatrix by her will, in language capable of but one construction de-. dares that neither of said persons can exercise the power of sale without the consent and co-óperation of the other. The Revised Statutes, § 112, chap. 1, part 2 of Title 2, 7th ed., vol. 3, p. 2192, declares: “Where a power is vested in several persons, all must unite in its execution; but if previous to such execution one or more of such persons shall die, the power may be executed by the survivor or survivors.” In this case both the persons in whom the power of sale is vested are living, and a deed executed by one of them only is contrary to the statute. The distinction between trustees and executors in joining in a conveyance is a marked one. Ridgeley v. Johnson, 11 Barb. 527. The fact that H. L. Horton renounced as executor, therefore, does not dispense with the necessity for obtaining his consent and co-operation for the purpose of a valid conveyance under said will, as even so he would still be considered as a third person, whose consent was necessary. § 122 of the above mentioned chapter of the Revised Statutes, page 2193. In this case no such consent has been obtained.
    Where a power to sell lands is given to executors ratione officii and only by their official name, it has been doubted whether its exercise must not be limited to those who prove the will; but where it is given to executors by their individual names, as in the present will, it is certain that it is vested in all who are thus named, whether they prove the will or not, by force of the will itself and not by force of the probate, and that a devise of the power is then construed to take effect precisely in the same manner as a devise of the legal estate. There is no contradiction or variance in the authorities that a power which an executor takes by force of the will and not of its probate is not divested or affected by his renunciation of the office. Dominick v. Michael, 4 Sand. 400.
   By the Court.—Sedgwick, Ch. J.

The plaintiff testator provided in his will as follows: “ I hereby appoint and authorize H. L. Horton and Thomas J. Hyatt to be my executors of this my last will and testament, and 1 hereby authorize my said executors to sell all or any part of my real and personal estate at any time in their joint discretion—that is to say one is not authorized to sell or exchange without the consent and co-operation of the other—and to give valid" deeds of the same to the purchaser.”

Letters testamentary were issued to the plaintiff Hyatt, and Horton renounced his right to letters' testamentary.

The plaintiff as executor and the defendant entered into a contract to sell and buy real estate formerly of the testator. The defendant objected to take title on a ground which occasions the only question in the case. That question is, “Has Thomas J. Hyatt, as sole acting executor, power under the will to convey to defendant-valid title to the premises ? ”

The plaintiff claims under section 2642 of the Code of Civil Procedure, which provides, “ and where any powers to sell, mortgage or lease any real estate or any interest therein are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers, made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale.”

This statute does not deprive a testator of the right of declaring it to be his will that a power of sale, shall not exist in one executor, although the other neglect to qualify. The testator had legal right to shape the power and to declare who should exercise it.

In the present case, the intent was that a single executor, whatever should be the cause of his being single executor, should have no power to sell, and that the power to sell should be based upon the exercise of a joint discretion.

I am of opinion that the defendant should have judgment with costs.

Freedman and Truax, JJ., concur.  