Opinion
June Term, 1897.
George D. Beattys, appellant in person.
Alfred S. Brown, for the respondent.
The question upon which the disposition of this matter depends is whether or not the will of the decedent contains an imperative power of sale. By his will, of date November 10, 1888, he directed that his debts and funeral expenses be paid out of his estate by the executor as soon as practicable after his decease. He gave the residue of his estate real and personal to his wife. He then added the clause: "Lastly, I hereby authorize and empower my said executor, for any purpose that he in his best judgment may think proper, to grant, bargain, sell and convey all, or any part of any and all lands and real estate owned by me, or to which I may be entitled, or in which I may have any interest at the time of my decease, and to apply the proceeds of such sales in conformity to the provisions of this my last will and testament." He died in July, 1895. His will was admitted to probate and letters testamentary were issued to the executor. As it does not appear what his debts were at the time the will was made, or what the condition of his estate then was, the question presented is dependent solely upon the purpose of the testator as represented by the provisions of his will. He imposed upon the executor the duty to pay his debts without making them a charge upon his real estate. He also gave him a power of sale of the real property, with direction to apply the proceeds in such manner as the execution of the other provisions of the will required. Included in those provisions is the direction to pay his debts, for the payment of which it seems he left insufficient personal estate. In fact it appears that he left but very little personal estate. This was a general power within the meaning of the statute (1 R.S. 732, § 77) and was in trust. Such a power "unless its execution or nonexecution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested." (1 R.S. 734, § 96.) Ordinarily such will be deemed the nature of a power of sale in a will when the execution of directions contained in its other provisions requires the application of the proceeds of the sale of the real property to such purposes. ( In re Gantert, 136 N.Y. 106.) There would be no difficulty in giving such effect to the power of sale in the will under consideration, if the words "for any purpose that he, in his best judgment, may think proper" had been omitted. They indicate that the testator left it to the executor to determine whether the power should be exercised for any and what purpose; and that, if he thought proper to exercise it, then he should apply the proceeds of the sale "in conformity to the provisions" of the will. It seems to be the apparent purpose of the testator to leave the exercise of the power to the judgment of the executor. The power is thus expressly rendered in its nature discretionary, and, as for that reason the exercise of it cannot be compelled in equity for the benefit of the creditors of the decedent, the proceeding under the statute was properly instituted in the matter by the creditor. (Code Civ. Proc. § 2759, subd. 4.) The fact that the infant children of the decedent born after the making of the will cannot, by its provisions, be prejudiced, so far as relates to the shares to which they would otherwise, as his heirs and next of kin, be entitled in the estate (2 R.S. 65, § 49), has no bearing upon any question arising upon this review. ( In re Murphy, 144 N.Y. 557.)
The order appealed from should be affirmed.
All concurred.
Order of surrogate affirmed, with ten dollars costs and disbursements, payable out of the estate.