Opinion
February, 1920.
Atwater Cruikshank, for petitioner.
Fuller Hubbard, for executor.
The power or authority to sell given to the executor is purely discretionary. There is no direction in the will that the real property comprised in the residuary estate be sold; there is no direction to divide, nor is there by the terms of the will any duty to sell imposed upon the executor. It does not appear that the personal estate of the testator was insufficient to pay his debts and administrative expenses. Neither by the will nor by the situation of the estate does there appear to be any necessity for a sale of the real estate; and the intentions of the testator, as expressed in his will, can be carried out, although no equitable conversion is adjudged. It must, therefore, be held that no equitable conversion of the real property devised under the residuary provisions was effected by the will. Scholle v. Scholle, 113 N.Y. 261.
The will gives each of the testator's four children a one-fourth vested interest in the real property comprised in the residuary estate. These interests vested upon the death of the testator, and the real property passed to the devisees without the intervention of the executor in any way. The executor has no title to this real estate and no interest of any kind therein, except that he has a power of sale with respect thereto. This power of sale is wholly discretionary, and the proceeds of any sale under the power are to be paid to the same persons to whom the real property is devised. That is the plain meaning of the words "and apply the proceeds thereof as directed in and by my last will and testament." Clements v. Babcock, 26 Misc. 90.
The exercise of the power in the sale of the premises 45 Rockwell place was for the sole benefit of the devisees. The one-fourth of the real property comprised in the residuary estate, including the premises No. 45 Rockwell place, which vested in Herbert C. Barnes, became immediately charged with the inchoate right of dower of his wife, Lillian S. Barnes.
While, in cases where no equitable conversion arises out of a direction in the will or the necessity of the estate, an equitable conversion may result, in certain cases, by reason of an actual sale under a purely discretionary power, in so far as the conflicting claims to distribution by the heirs or next of kin of a deceased devisee are concerned, still as between the devisee and his wife under the circumstances of this case, it must be held that the proceeds of the sale of the Rockwell place premises retain the character of real estate. In the portion of these proceeds belonging to Herbert C. Barnes, his wife, Lillian S. Barnes, is entitled to an inchoate right of dower. See, generally, Scholle v. Scholle, supra; Matter of Tatum, 169 N.Y. 514; Matter of McComb, 117 id. 378; Phœnix v. Trustees of Columbia College, 87 A.D. 438; affd., 179 N.Y. 592; Harris v. Achilles, 129 A.D. 847; Parker v. Linden, 113 N.Y. 28; Matter of Bingham, 127 id. 296, 314; Matter of Wangner, 74 Hun, 352; Matter of Weinstein, 43 Misc. 577; Matter of Timpson, 15 Abb. Pr. (N.S.) 280.
Dower "is a legal, an equitable, and a moral right, favored in a high degree by law, and next to life and liberty held sacred. But dower exists also for reasons of public policy, not dependent entirely upon the maintenance and nurture of the widow and her children; it is recognized in this country as a positive and definite institution of the state" (14 Cyc. 885), citing many authorities, including the language of Thomas Coke: "It is a maxim that three things be favored in law: life, liberty and dower." And it is with this thought of the jealousy of the law for the preservation of dower that the consideration of the question at issue in the case at bar must be approached. Careful examination of the authorities cited by the respondent and an exhaustive study of the text books and cases generally discussing the matter here in controversy confirms the result reached, although no case involving the precise facts disclosed on this record has been found.
The attorney for the executor states in his brief that the premises in question were sold in October, 1917, for approximately $9,000, and the proceeds distributed "among the four beneficiaries entitled thereto."
Lillian S. Barnes, by reason of her inchoate right of dower in her husband's share of the proceeds of the sale of the Rockwell place premises, is a person interested in the estate of the decedent (Code Civ. Pro. § 2768, subd. 11), and is, therefore, entitled to an accounting from the executor with respect to such proceeds.
Decreed accordingly.