
    Ann McDonald, App’lt, v. Bryan O’Hara, as Executor, etc., Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed October, 1894.)
    
    1. Will-Power op sale.
    The power óf sale fails only when, by reason of a legal and irrevocable election, it becomes extinguished.
    
      2. Same.
    The rule as to election, in such case, does not apply where one of the beneficiaries is under age and incapable of making a legal election.
    Appeal from an order denying plaintiff’s motion to continue an injunction restraining the defendant, as executor of the will of John T. McDonald, deceased, from selling certain real estate pursuant to the direction contained in said will.
    
      James Kearney, for app’lt; William J. Lacy, for resp’t.
   The opinion filed below is as follows:

MoAdam, J.

The fourth clause of the will directs the executors to sell; the power is mandatory. Delafield v. Barlow, 107 N. Y. 585; 12 St. Rep. 494. While it is true that when the same person is exclusively entitled to a fund, whether in its unconverted or converted shape, such person being of full age and competent to act, he has the right to take it in its unconverted form; see Story’s Eq., § 793, and cases cited in 69 N. Y. at p. 5; 79 N. Y. 478; Greenland v. Waddell, 116 N. Y. 234; 26 St. Rep. 667; Mellen v. Mellen, 139 N. Y. 210; 54 St. Rep. 670; the rule cannot be applied here because one of the beneficiaries is .under age and incapable of. making a legal election. Such an election without the concurrence of all the beneficiaries cannot extinguish the power of sale, for the divided will of part only does not reconvert the money into land, so as to take it out of the operation of the specific purposes of the will, as declared by the testator, and make it vest as land. Indeed, the action is not on the theory that the money has been reconverted into land, but that the present is not the best time to dispose of the property. The time of sale rather than the right of sale is called in question. The power of sale fails only when by reason of a legal and irrevocable election it becomes extinguished. As the necessary concurrent act of election is wanting, the surviving executor, cannot be enjoined from carrying out literally the provisions of the will, which are his dominating guide. The protests filed by the adults against a sale at the present time ought to have great weight with the executor, but they do not give rise to the equitable relief claimed. It follows that the motion to continue the injunction must be denied, with $10 costs to abide the event.

Per curiam.

The order appealed from is affirmed, with costs, upon the opinion filed by the learned judge below.  