Summary
In Walsh v. Dunn,46 Atl. Rep. 592, partition was denied when the purpose for which the power had been given had been accomplished and testator's sons, of full age, had given a deed for their inheritance.
Summary of this case from Kraft v. FassittOpinion
06-06-1900
WALSH v. DUNN.
Edward Kenny, for complainant John Whitehead, for defendant
Bill for partition of real estate filed by Walter Walsh, as executor, against Christopher Dunn. Partition refused.
Edward Kenny, for complainant John Whitehead, for defendant
STEVENS, V. C.In Morse v. Bank, 47 N. J. Eq. 287, 20 Atl. 961, 12 L. R. A. 62, it is said by Mr. Justice Depue that "the court will not allow the power [of sale] to be executed, where, in the interval of time that has elapsed, the object for which the power of sale was created has been substantially accomplished." This rule, in its application to the facts of the present case, is well illustrated by Jackson v. Jansen, 6 Johns. 73, and Hetzel v. Barber, 69 N. Y. 1, cited in defendant's brief. On these authorities, it appears plain that the complainant, though once vested with a power of sale, is not now entitled to call for a partition. The act of 1888 (2 Gen. St. p. 2435, § 64) gives to executors vested with a power to sell the right to bring an action to effect a partition; but, of course, the power must exist at the time the action is brought. If it does not, the executor cannot sue; for he has no right other than this somewhat singular statutory right. In the case in hand the testator authorizes his executor to sell his real estate, and to divide the moneys coming from the sale thereof among his three children; "that is to say, upon each child reaching the age of twenty-one years, he or she shall receive its portion of my estate, and, in case any child shall die before twenty-one years of his age, his or her share shall be divided among their surviving brother or sister, as the case may be, share and share alike." The testator died in 1888, seised of the land in question. The executor did not sell. The three children have reachedthe age of 21 years. Now, it is manifest from the provisions of the will that the testator intended that, if the sale was made at all, it should be made before the youngest child became 21. The power to sell was obviously given for the benefit of the children, while they were themselves unable to sell. The legal title descended upon them. They were entitled to the rents and profits from the death of the testator, and, having reached their majority, they could make such disposition of the property as they saw fit. There was no trust in the land, and the trust in the proceeds of sale was to cease when the youngest child became 21. The object for which the power was given has been accomplished, and the power itself is therefore extinct. The record shows that the children have answered, and have in their answers averred that they have sold and conveyed their entire interests. This conveyance does not appear upon the face of the bill, and is not, therefore, a proper subject for consideration on the demurrer. if true, however, it is a complete answer to complainant's case, because it shows an election in the children to take the land as land. This election they had the right to make. Morse v. Bank, 47 N. J. Eq. 287, 20 Atl. 961, 12 L. R. A. 62. The bill should be dismissed on the ground first stated.