Opinion
January, 1905.
A.S. Tompkins, for the appellant.
Benjamin Levison, for the respondent.
The question presented by this appeal is whether or not, under the terms of the 2d clause of the will of Garret Sarvent, the administrator with the will annexed had power to sell the homestead plot. If he had such authority, the judgment must be affirmed; otherwise, not.
The 2d clause of his will reads as follows: "It is also my will and I do hereby order and direct that my homestead plot * * * remain unsold and that my son Charles A. Sarvent and Carrie his wife have the free use, occupation and control of the same during their natural lives or the life of either, they, however, to pay all taxes accruing thereon and to keep the same in repair so long as they desire to use and occupy the same, and at the death of said Charles A. and Carrie, his wife, I order and direct that my executors sell the same giving good and sufficient deed or deeds to the purchaser or purchasers thereof, and that the proceeds arising from the sale thereof be divided between the children of my said son Charles A. Sarvent equally share and share alike. Should my son Charles A. and Carrie his wife not desire to occupy said premises and pay the taxes and make no repairs as aforesaid or refuse to pay said taxes or make said repairs, then and in that event I authorize my executor to sell the same and invest the proceeds thereof and pay the income thereof to said Charles A. Sarvent and Carrie his wife during their natural lives, and after their death to divide the proceeds between the children of Charles A. Sarvent equally share and share alike." There was abundant proof upon the trial that before the plaintiff contracted to purchase this property Charles A. Sarvent did not desire to occupy the premises, pay the taxes and make repairs, and had actually refused to pay the taxes and make repairs on the premises. The scheme of this clause of the will seems quite clearly to be that Charles A. Sarvent and his wife should have the beneficial use of the homestead or the proceeds from its sale during their lives and that the remainder should go to their children. The executor by this clause of the will was absolutely directed to sell the homestead upon the death of Charles A. Sarvent and Carrie, his wife, and under the authorities to which attention will be called, it cannot be doubted in respect to the sale after the death of Charles A. and Carrie, that the administrator with the will annexed would have had abundant power and authority to convey. Although the testator used the word "authorize" in respect to his executor selling the premises in case Charles A. and Carrie do not desire to occupy and refuse to pay taxes and make repairs, the term must be considered, in the light of the whole scheme of that clause of the will, to have been used in a mandatory sense. It is clear that the testator had in mind and intended that there should be no waste of the homestead plot, and that his son Charles and wife should occupy and make repairs and pay taxes or otherwise should obtain the income from the proceeds of the sale of the homestead plot. If no mandatory direction to exercise a power of sale was given to the executor waste of the premises was almost sure to follow; either the taxes would remain unpaid and the property be sold to satisfy them or the place would go to ruin for want of repair. No discretion as to whether or not a sale should be made was contemplated by the use of the term "authorize." The intent of the testator was to direct that the same should be sold in case his son refused to pay the taxes and make repairs. The rule as to the power of an administrator with the will annexed to sell property under a power of sale was recently discussed in this department in Carpenter v. Bonner ( 26 App. Div. 462), where Mr. Justice BARTLETT said (p. 463): "The title to the premises which the appellant purchased on the foreclosure sale in this action depends upon the validity of a sale made by Coleridge A. Hart, as administrator with the will annexed, under a power of sale contained in the will of his father, Gilbert B. Hart, deceased. The rule in regard to the exercise of such a power by an administrator with the will annexed was recently considered and applied by this court in the case of Clifford v. Morrell ( 22 App. Div. 470). There is no objection or obstacle to its exercise by such an administrator where no element of personal discretion is involved, and the power of sale is imperative under a fair construction of the will. In the present case it is not necessary to review at length the various provisions of the long will in which the power is contained. It is enough to say that we deem the direction in the 2d article, in respect to the sale and conversion of the real estate and the investment of the proceeds, sufficiently absolute and mandatory to authorize the exercise of the power by an administrator with the will annexed, in default of its exercise by the executor named in the will. It is true that the testator empowers his executors, `at their discretion,' to sell and convert all his real estate; but the context leaves no doubt that this phrase was merely intended to relate to the time at which, and the circumstances under which, a sale might be made, and was not designed to vest them with any discretion whatever as to the question whether they should sell or should not sell. The testator manifestly intended that his real estate should be sold and that the proceeds should be invested in three separate funds. At the same time he left his executors at liberty to determine the precise time when the sale should be made, and left them at liberty to make it under such circumstances as should be most favorable to the parties interested." (See Greenland v. Waddell, 116 N.Y. 234; Mott v. Ackerman, 92 id. 539.)
The provisions of the clause under consideration did not involve the personal discretion of the executor, and hence our conclusion is that the administrator with the will annexed had authority, under the power of sale contained in the will, to make the sale of the homestead plot to the plaintiff, and that the judgment should, therefore, be affirmed.
HIRSCHBERG, P.J., BARTLETT and WOODWARD, JJ., concurred.
Judgment affirmed, with costs.