Hutchings v. Baldwin.

covenant on their part, they were to forfeit $1,000, which was paid down on signing the contract; and if the title. should prove defective, such sum was to be returned to them.

"The said surviving executors have, since the first day of February, 1860, the day mentioned in the said agreement for the completion of the purchase, duly tendered to the said Thomas Baldwin and George Baldwin, a deed for the premises above described, duly executed and acknowledged, and demanded the balance of the money to be paid by the last named parties upon the delivery of the said deed, pursuant to the said agreement. The deed, as tendered, was not objected to, as to form and execution, by the last named parties, yet they refused to take the said deed, and to pay the sum of six thousand five hundred dollars, so agreed by them to be paid, as aforesaid." A copy of the said deed is annexed to the case.

"The said defendants, Thomas Baldwin and George Baldwin, objected to the receiving of the said deed, on the ground that the said Stephen B. Hutchings and Abraham S. Jones had not, under and by virtue of the said last will and testament of the said William Osborn, or otherwise, any power or authority to convey the real estate mentioned in the said deed, or to give a good and sufficient title therefor."

"This case is submitted by the parties above named, to the Superior Court of the city of New York, for the purpose of determining the rights of the parties, according to the provisions of section 372 of the Code of Procedure. And it is agreed, that if the court should be of opinion that the said Stephen B. Hutchings and Abraham S. Jones, executors, as aforesaid, have power and authority to convey the said property, that then, and in such case, the said court shall give judgment accordingly, and shall adjudge and decree that the said defendants, Thomas Baldwin and George Baldwin, specifically perform their contract aforesaid, and pay to the plaintiffs the remainder of the pur chase money of the said property, being the sum of six

Hutchings v. Baldwin.

thousand five hundred dollars, with interest from the first day of February, 1860."

"And it is agreed, that if the court should be of opinion that the said plaintiffs, executors, as aforesaid, have not power and authority to convey the said premises, that then, and in such case, the said court shall give judgment accordingly, and that the sum of one thousand dollars, already paid as part of the said purchase money, shall be repaid to the said Thomas Baldwin and George Baldwin, and the said contract of purchase by them be declared null and void, and of no force or effect; and that the said parties, plaintiffs and defendants, may respectively have such further or such other relief as to this court may appear proper."

The case was properly signed and duly verified.

E. W. Walgrove, for the Plaintiffs.

Messrs. Berrien & Pert, for the Defendants.

BY THE COURT. HOFFMAN, J.-The authority conferred in this will upon the executors, is not an estate in trust, but a power; an authority to do an act in relation to lands. (1 R. S. 732, § 74; Lang v. Ropke, 5 Sand. 362; Reed v. Underhill, 12 Barb. 113; Tucker v. Tucker, 1 Selden, 408.) The power in question, is a general power in trust, (§ 114, [94,] 1 Revised Statutes, 734, article, Powers.) By section 122, [102,] the provisions of the second article of the title from sections 66 to 71, both inclusive, are made applicable to powers in trust, and the grantees of such powers. By section [67,] page 730, "when the purposes for which an express trust shall have been created, shall have ceased, the estate of the trustees shall also cease." So when the purposes of a power are accomplished, the power is at an end.

We are then required to examine the will of the testator with care, to ascertain to what extent and for what purpose he has created and conferred the power; and while VOL. VII.

16

Hutchings v. Baldwin.

on the one side, his general language should not be strictly and rigorously construed so as to admit of no case for its exercise which is not to a demonstration within those purposes; on the other, if we find that estates and interests fully vested, are to be affected by its execution, we must be scrupulous in extending it, because it would be, in so far, an encroachment upon that absolute right of disposition which attends proprietorship.

In construing this authority and determining its extent, the intention of the testator in creating it must constitute the guide. Fronty v. Fronty, (1 Bailey's Eq. Rep. 517;) Wilson v. Troup, (2 Cowen, 195.) The devisor has, in the first place, given to his wife a clear life estate, in all the remainder of his property, real and personal, after payment of his debts; "she to receive the rents, issues and profits, during her natural life, for her own use." He has then empowered her to make leases during her life, (with the concurrence of his other acting executors,) so that such leases commence in possession, and be for not more than twenty-one years. This bequest to her was to be in lieu of all dower and other claim upon his estate.

The language of the authority is absolute and comprehensive; so much so that we are bound to see clearly, that it is to be restricted by force of other clauses, to certain cases, or for certain purposes; otherwise, it undoubtedly would authorize a sale after, as well as before the death of the widow.

It is not enough to restrain it that portions of the will indicate that he contemplated that some of his real estate might remain unsold after her death. He might well expect that the executors might, in exercising a sound discretion, leave portions, if not all, unsold.

The more important clause, is the one which provides, that "after the sale, my wife shall have the same interest in the proceeds as she had in the property before the sale." At the first view, this would tend to the conclusion, that the sale was to be during her life. But it admits of the meaning, that if a sale is made either of all the real estate,

Hutchings v. Baldwin.

or of any portion while she lives, such shall be her interest in the avails. It is not sufficient to overrule the comprehensive language of the power.

There is another clause of great importance. He directs “that every devise or bequest, shall be considered as vested as personal estate, at his decease, but so as to be subject to any prior life estate executed by this will, and not to bear interest in favor of any party until the time for payment to such party arrives." This, and other clauses, indicate with sufficient clearness, that he meant and expected that his property should, for the purposes of distribution, be treated as personal estate, and hence tend to construe and define the power to sell, by which a conversion actually into personalty, would be accomplished, and give it full and absolute effect.

In Meyrick v. Coutts, (Exch. 1806, cited by Sugden on Powers, vol. 1, page 335,) a devise was to A. the testator's wife, for life; and after her decease, a power to trustees to sell, and pay the money among the children of B., who had an infant child then living. The court held that a sale could not be made till after the widow's decease. Here the power did not arise until her death.

In Fry v. Fish, (Rolls 5, Aug. 1811, cited also by Mr. Sugden on Powers, vol. 2, p. 463,) a mother had joined in a recovery and settlement, by which the estates were limited to her for life, then to the husband of her daughter for life, with remainders over to children of the marriage. There was inserted a power of sale at any time during the lives of husband and wife, with their consent, and of the survivor. A sale was made in the lifetime of the mother. It was objected that the power could not be executed until her death; but the purchaser was compelled to take.

Here the outstanding life estate did not prevent a sale, because the mother had united in the instrument which conferred the power on the trustees with consent of the husband and wife.

In Moseley v. Hide, (17 Queen's Bench, 91,) a sale made

Du Bois v. Ray.

during the life of a wife, when the power was given, to be exercised after her death, was held invalid.

This also was a case of a plain restriction to a given event, for the exercise of the power.

The judgment must be for the performance of the contract, payment of the purchase money by the defendants, and conveyance by the plaintiffs, according to the submission, without costs to either party.

Ordered accordingly.

ARTHUR CONSTANT DU BOIS, Baron de Courval, and MARY, his wife, Plaintiffs and Appellants, v. MARY REBECCA RAY, Defendant and Appellant, and ROBERT RAY and others, Defendants and Respondents.

1. The testator, R. R., by his last will and testament, after making provision for his widow, and having at the date thereof one child, E. S. R., after sundry legacies, bequeathed the rest and residue of his personal property to his executors, in trust for the use of his daughter, E. S. R., not to be paid to her until the age of 24; and if she died before that time, leaving issue, such issue to receive the same. All his real estate he devised to his daughter, E. S. R., for her natural life, and after her death, to the child or children she might leave, when he or she, or they, may have attained the age of 21 years, in fee, with authority to the executors to sell and to lease for a term not exceeding 21 years.

He then provided that in case he should have any other child or children, "either before his death or posthumous," his personal property should be divided among all his children, (with limitations in respect to daughters, such as applied to E. S. R.,) and each of such children were to share his real estate with E. S. R., the previous provisions of his will to be applicable thereto, and with remainder to their issue. And the testator then adds: "6th. In case I have no child or children living at the time of my death, and no posthumous child; or in case such child or children should die without lawful issue, and thus I should have no lineal descendants, I give, devise and bequeath my whole estate, real and personal, to the children whom my brother R. R., and my sister M., wife of J. A. K., may leave, or the child or children of any who may die before me, (such last named child or children to inherit only its father's or mother's share,) to be divided equally and in equal parts among such children, per capita and not per stirpes, when the eldest of such children shall have attained the age of 34 years; each child who at the time of such division may be under age, to receive his or her portion on reaching the age of 21 years."