Opinion
Argued February 27, 1891
Decided March 17, 1891
Joseph W. Taylor for appellant.
P.M. French for respondents.
The only question presented by this appeal is whether the testator's realty is converted by the will into personalty. The fee of the farm is not devised, nor is the fee of the house and lot, and both, upon the death of the testator, descended to his heirs at law, George H. Bristol and Larius F. Bristol, Jr., subject to the life estate of the widow in the house and lot, or to her dower right in both, as she may have elected, and also subject to such legacies, if any, as are charged upon the realty. It is evident from the face of the will that the testator did not intend to die intestate as to any part of his estate. In all of the divisions of his will, subsequent to the seventh, he speaks of the residue of his estate, which he disposes of as such in those provisions. This will was executed just fourteen months before the testator's death, and it is not asserted that his liabilities were increased, or the amount or character of his estate changed within that period, and at his death his debts exceeded his personalty. He directed, by the second division, that there should be invested for the benefit of his widow $4,000, the interest upon which is to be paid to her semi-annually during life, and he bequeathed to nephews and nieces legacies amounting to $1,600, making the aggregate amount of legacies $5,600, none of which can be paid without resorting to the real estate, which fact must have been as evident to the testator at the date of his will and at all times thereafter as it is now apparent to the court. Within the rule laid down in McCorn v. McCorn ( 100 N.Y. 511) the legacies bequeathed in the second, fourth, fifth and sixth divisions of the will are a charge upon the realty, and must be provided for out of the avails produced by a sale of it.
It is apparent, we think, from the face of the will, taken in connection with the situation of the testator's estate, that he must have intended that his farm should be sold and converted into money within three years after his death and the legacies for the benefit of his widow, nephews and nieces provided for, and that one-fourth of the residue should be paid to the American Bible Society, and three-fourths of it to the trustees of the General Assembly of the United Presbyterian Church of North America; and that within three years after the death of his widow the house and lot should be sold, and the avails thereof, together with the $4,000 invested for her benefit, be paid in like proportions to those corporations. When a will expressly confers power upon the executors to convert real estate into money, and it is evident that the testator contemplated that it must be done for the purpose of carrying the will into effect, and it appearing that in no other way can the intent of the testator be effectuated, the realty will be deemed to have been converted into personalty. ( Hood v. Hood, 85 N.Y. 561; Lent v. Howard, 89 id. 169; Moncrief v. Ross, 50 id. 431; Fisher v. Banta, 66 id. 468; Clift v. Moses, 116 id. 144.)
This will does not, in express terms nor by implication, confer upon the executors power to determine whether or not a sale shall be made, but vests them with discretion when, within specified periods, both pieces shall be sold. Nor can the inference be drawn from the will and the situation of the estate that he did not absolutely intend to require his executors to convert his realty into personalty for the purpose of carrying out his intentions, for as before stated, in no other way could he have anticipated that they could be carried into effect. The eighth and ninth divisions should be read as though separated by a comma and connected by the relative "which," it being clear that the testator in the ninth and subsequent divisions referred to the avails of his estate after payment of debts, charges, funeral expenses, legacies and expenses of administration mentioned in the eight divisions.
This case is not within the reason of Scholle v. Scholle ( 113 N.Y. 261), in which every devise and legacy could be satisfied without a conversion of the realty into money, while in the case at bar none of them except the devise of the life estate in the house and lot to the widow can be without a conversion. A conversion being absolutely indispensable to carry out the purposes of the testator, and a power to convert being expressly given to his executors, it must be held that it was his intention that the realty should be sold for the purpose of carrying out the provisions of his will.
The judgment is modified as follows: (1) The part which adjudges: "That under the said will there is no equitable conversion of any of the real estate into personal property," is reversed, and it is adjudged that the realty of which the testator died seized is converted into personalty. (2) The part which adjudges: "That the portion of the real estate of said John McNaughton, mentioned in said items numbers 10, 11 and 12 of his will, are not disposed of by said will, but descend to his heirs at law," is modified by adding thereto the words "subject to the power and duty of the executors to sell and subject to the trusts declared in the 8th, 9th, 10th, 11th and 12th divisions of the will." (3) It is adjudged to be the duty of the executors to sell the farm and out of the avails pay the costs allowed in this action, and subject to the claims of creditors pay the legacies for the benefit of the widow, nephews and nieces, and one-fourth of the residue (subject to the limitation of chapter 360, L. 1860) to the American Bible Society, and three-fourths of the residue, subject to the limitation of that chapter, to the Trustees of the General Assembly of the United Presbyterian Church of North America. (4) After the death of the widow the house and lot and household furniture must be sold and the avails thereof together with the sum invested for her benefit paid (subject to the limitation of chapter 360, L. 1860), in like proportions to said corporations. (5) That part of the judgment which awards to the guardian ad litem $68.38 costs against the Trustees of the General Assembly of the United Presbyterian Church of North America is reversed, and it is adjudged that said costs be paid to said guardian ad litem out of the estate. The Trustees of the General Assembly of the United Presbyterian Church of North America are allowed taxable costs in the General Term and in this court payable out of the estate, and the guardian ad litem is allowed taxable costs in this court payable out of the estate.
The judgment as so modified is affirmed.
All concur.
Judgment accordingly.