
    George B. Abbott, Public Administrator in Kings County, as Administrator with the Will Annexed of Augustine Barker, deceased, Pl’ff, v. John F. James, Def't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1888.)
    
    Will—Construction of—Power of sale—When will can be carried OUT WITHOUT SALE.
    The will of B., after devising to his wife all his household furniture, gave her, during her life, should she remain unmarried, the use of all his property, real and personal, of every description. Then followed a clause giving all of his said property, the use of which he had given to his wife during her life or widowhood to three societies, naming them, to be equally divided between the three said societies. He then provided that should any of the property hereby devised to said three societies upon the death or remarriage of his wife consist of real estate, he directed his executors to sell the same and divide the proceeds between the said three societies. The societies are within the classes of corporations enumerated in chapter 300 of the Laws of 1860, forbidding such a gift by one who, The the testator, left a widow surviving him. Held, that on the death of testator, one-half the estate vested in the heirs-at-law, subject to the life estate of the widow. The residuary bequest being invalid, there was no conversion of the whole estate into personalty. There is no necessity for presuming a conversion in order to carry out the lawful purposes of the will. One-half of the property vested in the heirs, and they could taks the real estate free from the power of sale, as there is no direction that they should only receive money. No valid trust is created, and no absolute general direction given to the executor to sell and dis tribute the property. The will can be carried out without any sale, and the power of sale is invalid. Following Chamberlain v. Taylor, 7 N. Y. State Rep., 517.
    The plaintiff claims that the defendant should be compelled to complete his purchase of certain real estate sold to him by the said plaintiff as administrator, etc., and pay over the balance of the purchase money, and the defendant resists the said claim, refuses to complete the purchase, and on his part seeks the return of the amount paid down at the time of the sale, on the ground that the plaintiff’s right to sell the said real estate is defective, and the power of sale under which he claims to act is invalid, and that the plaintiff cannot convey to the defendant a good and merchantable title to the real estate in question.
    The following are the facts upon which the said controversy depends:
    One Augustine Baiker, a resident of the city of Brooklyn, and county of Kings, died sometime during the month of July, in the year 1887, leaving no personal estate, and seized of certain real estate situated in the said city and county, of the value of $6,000, bounded and described as follows, viz. :
    “All those four certain lots, pieces or parcels of land, situate, lying and being in the Twenty-first ward of the city of Brooklyn, county of Kings and state of New York, bounded and described as follows, to wit: Beginning at a point on the easterly side of Walworth street, distant three hundred and ninety (390) feet southerly from the southeasterly corner of Willoughby avenue and Walworth street, running thence easterly parallel with Willoughby avenue one hundred (100) feet; thence southerly parallel with Walworth street twenty-five (25) feet; thence easterly parallel with Willoughby avenue one hundred (100) feet to Sand-ford street; thence southerly along Sandford street twenty-five (25) feet; thence westerly parallel with Willoughby avenue one hundred (100) feet; thence southerly parallel with Walworth street fifteen (15) feet; thence westerly parallel with Willoughby avenue one hundred (100) feet to Walworth street; and thence northerly along Walworth street sixty-five (65) feet to the point or place of beginning.’”
    He left him surviving a widow, Helen C. Barker, whose age at that time was sixty-seven years, but no parent, child or descendant, and disposed of his property by a last will and testament, with a codicil thereto, as follows:
    This is the last will and testament of me, the undersigned, Augustine Barker, of the city of New York.
    
      First. I direct that all my just debts and funeral expenses be paid.
    
      
      Second. I give to my wife all my household furniture, including the clothing of the family.
    
      Third. I give unto my said wife during her life, should she remain unmarried, the use of all my property, real and personal, of every description, not hereinbefore bequeathed.
    
      Fourth. Upon the death of my said wife or her re-marriage, whichever may first happen, I give all my said property, the use of which I have given to my wife during her life or widowhood, as aforesaid, to the three following named societies, to wit: To the American Home Missionary Society, the American Sunday School Union, established in the city of Philadelphia, and the American Tract Society, instituted in the city of New York, to.be equally divided between the said three societies. Should any of the property hereby devised to said three societies, upon the death or re-marriage of my said wife, consist of real estate, I direct my executor, herein named, to sell the same and divide the proceeds between the said three societies. I am the owner and proprietor of the secret of making and preparing a liniment known as “Dr. Barker’s Knickerbocker Vegetable Liniment.” The label used upon the bottles by which I sell the same I have obtained a copyright for. This secret and copyright I do not consider bequeathed by me by the above provisions of my will, and I hereby bequeath the said secret and the said copyright and all my right, title and interest to the making and vending of said liniment to my said wife during her life, she not to divulge the secret of making said liniment. And after her death I bequeath the said secret to my executor, together with said copyright, with the request that all profits that shall arise out of the making and vending of said liniment, after paying himself the expenses and a reasonable compensation for attending to the same, shall be divided between the three said societies, from time to time, as they may accrue.
    I hereby declare that the provisions herein made in favor of my wife shall be deemed in lieu of her dower in any real estate I may leave at my death. And I hereby appoint the Rev. Edwin F. Hatfield sole executor of this my last will. And I hereby revoke all former wills by me made.
    In witness whereof I have hereby set my hand and seal to this my last will, this fifth day of April, one thousand eight hundred and fifty-six.
    [l. s.] AUGUSTINE BARKER.
    
      Charles H. Otis, for pl’ff; Bergen & Dyhman, for def’t.
   Pratt, J.—On

the death of the testator, one-half the estate vested absolutely in the heirs-at-law subject to the

life estate of the widow. The residuary bequest being invalid, there was no conversion of the whole estate into personalty.

The case of Chamberlain v. Taylor (105 N. Y., 185; 7 N. Y. State R., 517) is a controlling authority upon this question. It is true in that case there was an attempt to create a trust, but in this case, like that of Chamberlain v. Taylor, there was no necessity for presuming a conversion in order to carry out the lawful purposes of the will. One-half the property vested in the heirs, and they could take the real estate, free from the power of sale, as there is no direction that they should only receive money. No valid trust is created by this will, and no absolute general direction given to the executor to sell and distribute the proceeds. The will can be carried out without any sale.

The case of Kearney v. Missionary Society of St. Paul (10 Abb. N. C., 274) is not in point. In that case the whole purpose of the will was valid, and could not be carried out without a conversion of the real into personal property. A valid trust was created, which could not be executed without such conversion, and the case simply holds that the mere fact that a beneficiary (one entitled only to receive money) could not take the full amount bequeathed to it, did not defeat the general scheme of the will. We think under the case of Chamberlain v. Taylor (supra) the power of sale was invalid.

The defendant must, therefore, have judgment.

Barnard, P. J., and Dykman, J., concur.  