Catton v. Taylor , 42 Barb. 578 ( 1864 )

By the Court,

Ingalls, J.

The determination of this action depends upon the estate which Charles Catton, jun. took under the will. And that depends upon the construction which is to be given to the following provision of said will: “First, my real estate shall be sold as soon as possible after my decease, either by private contract or public sale, just as my executors may agree upon; and after payment of my just debts, and expenses incurred by the execution of this will, then the remaining money raised by the said sale or contract to be disposed of thus: To my wife Mary Catton shall be paid the sum of three hundred dollars annually, during her life, by my executors. The rest to be equally divided between my son Charles Catton, my daughter Elizabeth Catton and Colonel George, Bomford, excepting to George Bomford one hundred pounds, he having received that sum already. In case of the decease of any one of the three, if married, then that share to go to the heirs of the deceased; but,if unmarried, then to go to the surviving party or parties. If George Bomford shall be the first of the deceased, then his part to go to his present children.”

There is no devise of the land to the executors, for any purpose, nor are they authorized to receive the rents and profits, or invested with any interest in, or control over, the land, except to sell the same and divide the proceeds, which, upon the principle of equitable conversion, would be money and not land. (Willard on Real Estate, 261. Meakings v. Cromwell, 5 N. Y. Rep. 136, 140.) Even the authority to sell, by the executors, arises by implication, as they are not expressly named as the donees of the power. (Tucker v. Tucker, 5 N. Y. Rep. 408. Williams’ Executors, 579. Willard on Real Estate, 261.) The will merely conferred upon the executors a naked power. It was coupled with no trust or interest, and hence could only be executed by them, and does not survive. The estate vested in the heirs at law of Charles Catton, senior, at his decease, subject only to be defeated by the execution of the power. (Williams on Ex. 578.) The author says: “The distinction resulting from the authorities appears to he this, that a devise of the land to executors to sell passes the interest in it, but a devise that executors shall sell the land, or that the land shall he sold hy the executors,.gives them hut a power.” (Note 1 to same pagel) Again; “where the testator devised the rest and residue of his estate to be sold by his executors and the money arising from such sale, after paying debts, to be equally divided between his widow and children, and appointed the widow and two others executors, held that the executors had a naked authority, and that the legal estate descended to the heirs at laiu.” (Bergen v. Bennett, 1 Caines’ Cas. in Er. 15.) Kent, J. says : “If a man by his will directs his executors to sell his land, that is hut a hare authority without interest, for the land in the mean time descends to the heirs at law, who until the sale would he entitled to the profits, and being but a naked authority, if one executor dies, the power at common law would not survive. But if a man devises his land to his executors, to be ■ sold, then there is a power coupled with an interest, for the executors in the mean time take possession of the land and the profits. (4 Kent’s Gom. 320.) ‘A devise that executors shall sell, or that the land shall be sold by them, gave them but a power/ A devise of the land to be sold by the exec-tors confers a power and does not give any interest/.’ (Waldron v. McComb, 1 Hill, 111. S. C. 3 id. 361. Jackson v. Potter, 4 Wend. 672. Jackson v. Schauber, 7 Cowen, 187, 193. Tucker v. Tucker, 5 N. Y. Rep. 409, 413. Meakings v. Cromwell, Id. 136.)

[Albany General Tbbm, March 7, 1864.

The cases cited by the appellant’s counsel, (Brewster v. Striker, 2 Comst. 19; Striker v. Mott, 2 Paige, 387,) are clearly distinguishable from the case under consideration; as in those cases the power was given expressly to the "executors to receive and dispose of the rents and profits for the purposes therein specified. The same distinction exists as to the case of Leggett v. Hunter, (19 N. Y. Rep. 446, 454.)

If I am correct in the construction given to the will, and in the law applicable thereto, it follows that Charles Catton, junior, was, as has been before remarked, at the decease of his father, seised as heir at law of an interest in the land, subject only to be defeated by the execution of the power which has not been, and now, in consequence of the death of all the executors, can not be executed. Such interest he conveyed by the said mortgage, and by the foreclosure of which all his interest was divested; and by such foreclosure and the subsequent conveyances, title was acquired by the defendant Thomas H. Taylor in the premises, to the exclusion of the plaintiff. It is unnecessary to express an opinion upon th e other questions raised, as the one considered disposes of the case.

A new trial should be denied, with costs, and.judgment entered upon the verdict, in favor of the defendants.

Peclcham, Potter and Ingalls, Justices.]