#### Emily M. Salmon et al., Plaintiffs, v. Charles Salmon et al., Defendants.

(Supreme Court, New York Special Term,

August, 1898.)

Power to sell real estate — Increasing income of life tenant by a sale of lands taken by her in exchange. , , .

A testator, who. constituted his wife an executor' of his will, gave his executors no power to sell his real estate, but gave his wife' the use of his residuary estate, and also “ the privilege' of selling, exchanging or disposing óf all my Cornwall property- as she may desire1, and the proceeds thereof to be invested to best advantage during her lifetime, and then to descend to my children, share and share alike.” The wife exchanged the Cornwall property for lots in New York city and took title to, the lots by a deed -to herself as executrix and to . her coexecutor..

■ Held, that, for the better investment of the fund, and in order that, ■it might, produce a higher income to .'the wife, the executors had ■ power to. sell the lots in New York city. .- .

Action for the construction of a will.

Johnston & Johnston (Lewis Johnston and Edward W. S. Johnston, of counsel), for plaintiffs.

Edward D. O’Brien, guardian *ad litem,*for infant defendant.

Russell, J.

May executors, having no. expressed power to sell real estate, sell and convey lands in the . city of New York taken hy them in the execution of their trust in exchange for realty of the testator, who gave to his wife by his will the power to exchange for investment To afford, her an income '.during he® life! .

The testator, Hamilton H. Salmon, died leaving, the plaintiffs executors under, his will, which-gave his wife the use of his resid-' uary estate, and which will gave no power to sell his: realty, but provided as follows: “My said wife has also .the.privilege of -selling, exchanging or disposing of .all my Cornu-all property as she may desire, and the proceeds thereof to be. invested, to best advantage during her lifetime, and then to descend to my children, share and share alike.” Hnder this power the wife exchanged the Cornwall property for lots in the city of New York,- and the deed was *417taken to the wife and her coexecutor, as executors of the testator. It is desirable now to sell and convey the New York property for presumably better investment purposes, and the question arises as to the power, of the executors to convey.

It is not necessary to give an express power of sale in such cases to justify the authority of the executors. Meehan v. Brennan, 16 App. Div. 395; Cahill v. Russell, 140 N. Y. 402.

The case may be compared to that of executors receiving title to real estate through the foreclosure of a mortgage. Greenland v. Waddell, 116 N. Y. 236; Lockman v. Reilly, 95 id. 64; Haberman v. Baker, 128 id. 253.

In such cases the executors may convey the real estate taken upon the theory that in the eye of the law it still remains personal property.

In the present case the estate receives the real property in the city of New York for investment purposes for the use of the wife, and the title to the realty owned by the testator in Cornwall has passed from the estate in pursuance of the testator’s expressed power, and that power was to be used for a purpose antagonistic to the retention of the *corpus*as real estate. The controlling purpose of the testator was to furnish an income fund for the wife during her life, and the object of that purpose remains existent and operative until her death. It will not do, therefore, to say that the barren power, which was useless except for the beneficial trust purpose, is exhausted when once exercised while that object of its exercise remains as potent as ever. It may be fairly inferred that the testator would foresee that real estate taken in exchange might tend to depreciate in value, or the property might need improvements to be made from other funds of the estate, so that in either of these contingencies it would remain advisable to exchange such property taken for that more calculated to produce the income necessary for the use of the wife.

A construction, therefore, that now the intent of the testator is liable to be defeated because of an exhaustion of the power to sell and convey would nullify the object for which that power was given.

I am of the opinion that, according to the intent and even in strict pursuance of the language of the testator, the proceeds of the Cornwall property may still be invested to the best advantage during her lifetime as she is the recipient of the income of the residuary estate for such period. Therefore, the executors, includ*418ing as a matter of course the widow) whose consent is essential, may-convert the ¡New York property into other property for investment purposes and may convey the same as real estate, it having now that apparent form and such a conveyance being necessary to transfer a legal title to a purchaser. I think any mortgage of. the property would be contrary to the intent of the testator.

' Ordered accordingly.