
    Thomas T. Barr, Jr., executor, &c., of Laura E. Steele, deceased, complainant, v. Louis P. Booz, Jr., and Peter Rasmussin, defendants.
    [Submitted July 15th, 1924.
    Decided July 19th, 1924.]
    1. Where no express power to sell lands is given in a will to an .executor, such power will not arise by implication unless the implication is clear from the terms of the entire will, and it must be found that some duty has been imposed upon the executor which necessarily carries with it a power of sale in order to enable him to perform the duty.
    2. Where a will directed an executor to use principal or income for the support, maintenance and education of the testator’s niece, and there was no income or principal in the estate to be used for such purposes, the entire estate being real estate, a power of sale in the executor of the real estate is necessarily implied.
    On bill, &C.
    
      Mr. Wesley Benner, for the complainant.
    
      Mr. Thomas L. Hanson, for the defendants.
   Foster, V. C.

This is a suit for the specific performance of a contract which the parties made for the sale and purchase of certain real estate on High street, in Perth Amboy, of which complainant’s testatrix died seized on August 3d, 1922.

The case has been submitted on the pleadings and an agreed state of facts, and from these it appears that the only question in controversy is the right and authority of complainant, as executor and trustee, to make a valid sale and conveyance of decedent’s real estate.

It is admitted that decedent died testate, seized of the premises in question, which constitutes her' entire estate; that these lands are subject to mortgages amounting to $5,000; that the premises are unrented and unoccupied; that the estate has no income from which the interest; taxes and other fixed charges can be paid.

It is further admitted that the will has been admitted to probate and that complainant has duly qualified and is acting as the executor of and trustee under it, and that as such he made the contract in question with the defendants.

Defendants refuse to- perform the contract, claiming that complainant, under the will, is without the power and authority, express or implied, to sell testator’s lands and to give- a good title thereto.

The will first directs the payment of the debts and funeral expenses of tlie testatrix, and it then reads:

“Third. I give, devise, bequeath and appoint all the property and estate, ■ real and personal, ol whatsoever nature and wheresoever situate, of which I may die seized' or possessed or to which I shall then be entitled or over which I shall (hen have any power of appointment, unto my trustee hereinafter named, in trust nevertheless, to apply the income, together with so much of the principal thereof as my said trustee shall in his uncontrolled discretion see fit, for the support, maintenance and education of my beloved niece, Eleanor Steele, of the Oily, County and- State of New York, until my said niece shall reach the age of twenty-one years, and at that time to pay the remaining principal and income of my said estate to my said niece, her heirs, executors, administrators and assigns, to be here absolutely and forever.”

By the fourth item of the will, complainant is appointed executor and trustee without bond or other securitj1'.

It will be noted that by the third clause of the will the entire estate, after the1 payment of debts and funeral expenses, is bequeathed and devised to the trustee; that the trustee is therein directed, in the performance of his trust, to perform certain specific duties, • viz.: He is to apply the income, from the estate bequeathed and devised to- him, together with so much of the principal as he sees fit “in his uncontrolled discretion,” to the support, maintenance and education of the niece of testatrix, until she reaches the age of twenty-one years, and at that time he is to pay to her the remaining principal and income of the estate.

In the present condition of the estate there is neither income nor principal which the trustee can use, or apply, as the testatrix has directed. It may be that the premises can be rented and sufficient income be obtained thereform, not only to pay the interest, taxes and other fixed charges, but also to support, maintain and educate testatrix’s niece; but if the income should not be sufficient for all of these purposes, then, in the absence of a sale of the real estate, there is no principal of the estate to which the trustee can resort, as testatrix has directed, and which may be used and applied by him, in connection with this possible net income, to the support, maintenance and education of testatrix’s niece.

To obtain the pxxincipal of the estate for such purposes, the real estate must be sold, as there is no other property in the estate.

If the real estate is not sold to produce a principal of the estate to which the trustee may resort, and if the net income proves insufficient, as it is admitted it will, to support and educate testatrix’s niece, then the intentions and purpose-of the testatrix as expressed in her will must be defeated.

To avoid the result, and to give effect to the intention'; and directions of the testatrix as expressed in her will, there must, of necessity, be found in the will an implied power and authority to her executor and trustee to make a valid and effectxxal sale and conveyance of her lands.

Authority for finding an implied power of sale under the circumstances present in this case, is found in the rxxle stated in the controlling case of Chandler v. Thompson, 62 N. J. Eq. 723, where the court of errors and appeals held that:

“Where no express power to sell lands is. given in a will to the executor, such power will not arise by implication, unless the implication is clear from the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executor which necessarily carries with it a power of sale in order to enable him to perform the duty.” See, also, Lindley v. O’Reilly, 50 N. J. Law 649.

As such a duty has been imposed by the testatrix upon her executor and trustee, it follows that he has an implied power of sale of her lands in order to enable him to perform this duty.

A decree will therefore be advised for complainant.  