Crittenden v. . Fairchild , 41 N.Y. 289 ( 1869 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The only question presented in this case, is whether this will gives a valid power of sale to these executors, under which they can convey a good title to the premises in question, to the defendant. It is very clear to my mind that it does. The appellant's counsel claims and insists, that there is no positive trust created in this case, and that if a trust to sell can be implied, it would not be valid as a trust, because it is neither for the purpose of paying debts or legacies. The fair import of the will is, that these residuary legatees shall receive from the executors their bequests in money. If this be so, then the lands are required to be sold by the executors, and the moneys distributed to these residuary legatees, according to the directions contained in the will. It does not follow, however, that if this is not one of the trusts allowed by the statute, this power of sale is therefore wholly invalid. The fifty-eighth section of the same article, declares that where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustees; but the trust directing or authorizing the performance of any act which may be lawfully performed under a power, shall be valid as a power in trust, subject to the provisions in relation to such powers contained in the third article of this title (1 R.S., 729, § 58.) The construction put upon this fifty-eighth section in the case of Downing v.Marshall (23 N.Y.R., 366, §§ 379 and 380), and in which I fully concur, relieves the case from this difficulty, if any such existed in the case. But this argument does not belong to the case. Here is no attempt to vest a title in the trustees, but to confer a power of sale upon these executors, and distribute the avails to the residuary legatees. It has never been doubted that such a power of sale — conferred upon the executors for the purpose of carrying out the provisions of the will, and where the exercise of the power becomes necessary to carry out the intentions of the testator — is good.

It is apparent, that this testatrix intended not only to confer a power of sale, but that the exercise of such power would become absolutely necessary, to enable the executors to make the distribution required to the residuary legatees. The purposes of the testatrix, in this respect, are so clearly expressed, as to leave no reasonable doubt as to his wishes. The division into the shares provided, is to be made by the executors; and the distribution, which they are required to make in shares, is wholly incompatible with the idea that she intended her residuary estate should vest immediately and absolutely in the devisees, without a division; and it is no objection to the power in trust, in this case, taking effect as such, that it leaves the title in the heirs, subject to the execution of this power. (Downing v. Marshall, 23 N.Y.R., 379 and 380.) It follows, from what we have already said, that the objection made by the appellant, that the title offered him in this case, is not good, because the power of sale, which these executors have executed in making this conveyance to him, is inconsistent with, and defeats the devise to these residuary legatees, is not tenable. The title is made by the statute, in such a case, to vest at once in the devisees, subject only to the execution of the power, for the purposes for which it was conferred. (1 R.S., 729, § 56; 4 Kent Com., 321, 322, 8th ed., 338, 339.)

The case, Quinn v. Skinner (49 Barb. R., 128), decided by the same court that pronounced the judgment in this case, decides nothing in conflict with the views above expressed. In that case, it expressly appears, that the power of sale was not given to enable the executors to carry out the provisions of the will in the payment of legacies.

The judgment, in this case, should be affirmed.