Opinion
March Term, 1899.
Henry Cooper, for the appellant.
Jacob Marks, for the respondent.
The plaintiff demurred to the answer; the defendant retorted by asserting that the complaint did not state a good cause of action. This contention the court below upheld, and rendered judgment in favor of the defendant. The action is for partition, and the only question is whether, under the 4th clause in the will of the ancestor of the plaintiff, the defendant, as executor, took title to the real estate mentioned in that clause. We think he did. There is a devise in express terms to the executor, and he is directed to collect the rents and divide them among the beneficiaries until such time as he shall have sold the property. This is an express trust, not merely a power in trust. It is, therefore, unnecessary to consider whether the direction of the will, that the executor should sell, constituted an equitable conversion.
The will directs that the executor shall sell, as soon as possible after the testator's death and within two years from the admission of her will to probate, for the best price that can be realized, but for not less than $18,500 without the written consent of the testator's sons. It seems to us that this does not violate the statute against perpetuities. The trust is to continue until the time of sale. If the authority to sell was unqualifiedly limited by the provision that the executor should obtain the sum of $18,500 for the property, the trust would be illegal because it might be that the executor never could obtain that price. But under the will the executor can sell for any price if he obtains the consent of the testator's sons. Therefore, under Robert v. Corning ( 89 N.Y. 225) there is no restriction of the power of alienation, for there are persons in being capable of conveying at any time an immediate and absolute fee in possession. Nor has the power of sale ceased by the failure to exercise it within the term of two years. It still continues. ( Mott v. Ackerman, 92 N.Y. 539.)
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.