Recht v. Herschman-Bleier-Edelstein Company

Full title: RUDOLPH RECHT, Plaintiff, v . HERSCHMAN-BLEIER-EDELSTEIN COMPANY, Defendant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 29, 1910

139 App. Div. 300 (N.Y. App. Div. 1910)

123 N.Y.S. 932

Opinion

June 29, 1910.

Samuel H. Sternberg, for the plaintiff.

Henry Fluegelman, for the defendant.

RICH, J.:

The question for our determination upon this submission is whether the legatees of Philo Chase, deceased, were necessary parties to the Edelstein action, mentioned in the foregoing statement, and I think it must be answered in the negative. The effect of the provisions of the will of Philo Chase was to work an equitable conversion of the real estate. The executors are authorized to sell the realty or any part thereof, for the purpose of providing a fund with which to pay the testator's debts and the legacies given by the will. There was not sufficient personal property to pay the testator's debts and the legacies, and he must have known and intended that a sale of the property would become necessary. The power of sale is, therefore, imperative to carry out the provisions of the will, and there was an equitable conversion of the real estate into personalty. ( Boehmcke v. McKeon, 119 App. Div. 30; Salisbury v. Slade, 160 N.Y. 278; Delafield v. Barlow, 107 id. 535.) The joining of the legatees was unnecessary.

The judgment should be for the defendant, with costs, in accordance with the terms of the submission.

WOODWARD and CARR, JJ., concurred; BURR, J., read in favor of dismissing the proceedings, with whom JENKS, J., concurred.

BURR, J. (dissenting):

I vote to dismiss the proceedings. I am suspicious of the good faith of the controversy. It looks to me like an attempt to obtain an expression of opinion by this court as to the effect of the provisions of the will of Philo Chase, and of the judgment in the action of Edelstein v. Chase, where the parties to be affected, viz., the legatees of Chase, are not before the court. Under such circumstances the courts have uniformly declined to pass upon the question. ( Doyle v. Olson Realty Co., 132 App. Div. 206; Wood v. Squires, 60 N.Y. 191; Kennedy v. Mayor, 79 id. 361; Baumgrass v. Brickell, 7 N.Y. St. Repr. 685.)

JENKS, J., concurred.

Judgment for the defendant, with costs, in accordance with the terms of the submission.