#### Christiane M. Koezly, Individually and as Executor, etc., Plaintiff, *v.*Edwin H. Koezly et al., Defendants.

(Supreme Court, New York Special Term,

May, 1900.)

1. Power of sale — Present exercise defeated by a fixed price required to be obtained *“*beyond incumbrances ”.

Under a provision in a will of a testator that *“*If my said wife does not desire to care for *the*house as aforesaid, the same may be sold by her as my executrix, but for a sum not less than twenty-eight thousand ($28,000) dollars, beyond incumbrances, and the proceeds *398' representing the equity in the said house shall be kept as a trust fund ” to be distributed to the wife and the children of the testator, the word “ incumbrances ” includes a mortgage to which the house was subject when the testator died, and therefore the wife, as executrix, cannot sell unless she obtains $28,000 plus the mortgage, even though it be impossible for her to procure such a price.

8. Same — Discretionary power does not effect equitable conversion. The merely discretionary power of sale given to the wife does not work an equitable conversion of the realty into personalty.

3. Dower — Testamentary provisions inconsistent with — Election.

Provisions of a will under which a wife is given a house “ to live in and to rent out and to keep in good repair during her life”, is entitled to keep for life any flat therein rent free, and is given a share for life in the income derived from so much of the house as she does not occupy herself, are inconsistent with dower; and, where she continues *to*live in the house after her husband’s death and occupies a flat therein she must be deemed to have made her election and is not entitled to dower in the house.

4. Devise, through trustees, contingent — Survivorship until distribution.

Where property is given to trustees to pay the income to the testator’s wife and children and distribution of the *corpus*is directed to be made among the children when the wife dies, a child; who dies before her loses his interest as that is contingent upon his surviving until the period of distribution.

Action for an accounting, also for the construction of a will and for a direction as to the manner in which a certain trust fund shall he created and disposed of.

Peck *&*Field (Edward S. Peck and P. H. Johnson, of counsel), for plaintiff.

Appell *&*Keid (Charles B. Reid, of counsel), for defendant Koezlv.

L. A. Noble, for defendant Yan Leuven.

R. D. Elder, guardian *ad litem*and of counsel for infant defendants.

*399Lawrence, J.

This action is brought for an accounting for moneys-paid out by plaintiff, as executrix of Frederick J. Koezly; also for the construction of the will of said Frederick J. Koezly, and for a direction as to the manner in which a certain trust fund shall be created and disposed of. Plaintiff also asks in her complaint that the will may be so construed as to authorize and empower the plaintiff to sell real estate belonging to the testator, and that her right of dower in addition to the provisions for her benefit mentioned in the will may be determined. The action was commenced on the 10th of March, 1898. The testator died September 22, 1896, and left him surviving his widow and several children. He was married three times, and there was issue of each marriage at the date of his death. There survived him Edwin Koezly and Matilda J. Bennett, a son and daughter by his second marriage; also Doretta Koezly, daughter of Theodore Koezly, a son by the first marriage, Theodore being dead at the time of the decease of the testator; and Samuel, also a son by the first marriage. Samuel was alive and married at the date of the death of the testator, and left no issue, but did leave a wife, who remarried; and the defendants Geiger and Van Leuven claim to represent whatever interest she may have had in the estate. Said Anna Geiger has been appointed administratrix with the will annexed of the widow of Samuel Koezly, she and Van Leuven being children of the said widow by a first marriage. First. The fifth clause of the will is as follows: “ If my said wife docs not desire to care for the house as aforesaid, the same may be sold by her as my executrix, but for a sum not less than twenty-eight thousand (28,000) dollars, beyond incumbrances, and the proceeds representing the equity in the said house shall be kept as a trust fund, and the interest thereof shall be distributed semi-annually to my said wife and my said children at the rate hereinabove named during the life of my said wife.” It is claimed by the plaintiff that a mortgage of $13,000, to which the premises Ho. 20 East One Hundred and Eleventh street were subject at the time of the testator’s death, should not be included in the word “incumbrances ” used in the fifth paragraph of the will. This contention I regard as erroneous. In Chrystie v. Phyfe, 19 N. Y. 348, Strong, J., says: “ In the construction and application of wills, and especially of those containing complicated provisions, the following are reasonable and well-settled rules. The inten*400tions of the testator shall prevail if they are consistent with each •other and conformable to the principles of law. The language used shall receive its ordinary interpretation, except where some -other is necessarily or clearly indicated,” etc. The word “in-cumbrances ” has a fixed and definite meaning, and it must be .•supposed that the testator intended to give it its usual signification. In Prescott v. Truman, 4 Mass. 630, the court say: “ On these ■principles we are of the opinion that every right to the interest in "the land granted, to the diminution of the value of the land, but •consistent with the passage of the fee of it by the conveyance must "be deemed in law an incumbrance.” In Forster v. Scott, 136 N. Y. 582, the same definition is given in substance, and it is also added that “ Any right existing in another to use the land or whereby the use by. the owner is restricted is an incumbrance within the legal meaning of the term.” See, also, Wetmore v. Bruce, 118 N. Y. 319. As the term “ incumbrances ” has a fixed and definite meaning, unless we can discover from other provisions of the will that the testator did not intend to use it in its ordinary sense, it ■cannot bé allotted another meaning. Notwithstanding the elaborate argument of plaintiff’s counsel, I confess myself unable to discover such an intention on the part of the testator. He knew perfectly well that the property was incumbered with a $13,000 mortgage, and that that was, and necessarily would be, the chief incumbrance upon it, compared with which taxes and water rents and other charges would be insignificant; and he spoke advisedly when he required that the sale should be for a specific sum beyond the amount of the mortgage. Nor can I yield assent to the argument that because giving to the words “but for a sum not less than twenty-eight thousand (28,000) dollars beyond incumbrances ” would require a sale of the property for the sum of $41,000-, an amount said to be far exceeding the value .of the premises, it must be held that the sale was to be made for the sum of $28,000, including the mortgage; in other words,.for the sum of $15,000 ■over and above the mortgage. I am confirmed in this view from the fact that the testator appears to have thoroughly understood the meaning of the word “ equity ” as used in the fifth paragraph of the will. His language is: “The same may be sold by her as my executrix, but for a sum not less than twenty-eight thousand (28,000) dollars beyond incumbrances,’ and the proceeds rep- . resenting the equity in said house shall be kept as a trust fund, and *401the interest thereof shall he distributed semi-annually to my said wife and my said children at the rate hereinabove named during the life of my said wife.” There is no ambiguity here, and even if the testator had an exaggerated idea of the fee value of the property, we cannot on that account make a new will for him. It is, in my opinion, clear from the language which he .employed that the testator intended that the property, if sold, should produce, as the proceeds of the equity, the sum of at least $28,000. Second. ETor do I think that there was an equitable conversion of real property into personalty by the terms of the fifth paragraph of the will. A devise of real estate to executors with power to sell, but without directing the sale, does not effect a conversion of the real into personal estate. Harris v. Clark, 7 N. Y. 242. A merely discretionary power of sale does not work an equitable conversion of real into personal property (White v. Howard, 46 N. Y. 144); and the provisions of a will must be at least of such character as to leave no doubt of testator’s intent to have his real estate converted into personalty in order to sustain the theory of equitable conversion. Hobson v. Hale, 95 N. Y. 588; Underwood v. Curtis, 127 id. 532. In this case there is, as I read it, nothing in the will to indicate that it was the testator’s intention that there should be an equitable conversion of the realty. By the second clause of the will he gives to his wifé, if she so desires, the right to keep the house ETo. 20 East One Hundred and Eleventh street, “ to live in and to rent out and keep it in good repair during her life; ” and he further provides “that she shall be entitled to keep any flat therein she may prefer, free of rent, during her said life.” By the fourth, clause he directs with great particularity how the net income from the house (except the flat occupied by his wife) up to the sum of $1,000 shall he distributed in each year. He then proceeds to direct that, if his wife does not desire or care for the house, she may sell the same as executrix in the manner hereinbefore referred to. I regard the power of sale as purely discretionary, as working no equitable conversion, and as only permitting said sale to be made for the sum of $28,000 “ beyond incumbrances ” in case his wife elects to sell. Third. The provisions contained in the will in favor of the wife should be construed as having been intended by the testator to be in lieu of her dower. Matter of Zahrt, 94 N. Y. 605; Tobias v. Ketchum, 32 id. 319; Vernon v. Vernon, 53 id. 351. In Matter of Zahrt, the *402will, after directing payment of debts, funeral expenses, etc.,' gave to the wife during her life *“*the rents, income, interest, use and occupancy of all his estate, real and personal, upon condition that she keep the buildings and personal property insured, pay all taxes and assessments, and keep said estate in good repair.” The court held that the prolusion was inconsistent with the assertion of a dower right, and so must be construed as in lieu of dower; and that the widow having accepted the provisions so made she could not thereafter claim dower. Here the widow is to rent out and keep the building in good repair during her life, by which an income shall be realized for her benefit and for that of the testator’s children. She is also given a flat to live in, rent free, and is to distribute annually the net income as directed by the fourth clause of the will. The plaintiff here gets also one-third of the net income out of the 'first $1,000 to be distributed in each year. These provisions I regard as inconsistent with an intention on the part of the testator that his wife should also have dower in the realty. The plaintiff in this case, having lived in the house and occupied a fiat continuously since the death of the testator, should be deemed to have made' her election to accept the provisions contained in the will in lieu of dower. Sullivan v. McCann, 2 N. Y. Supp. 193. See, also, *17 N.*Y. St. Repr. 891. Fourth. As the trust fund created by the fifth clause of the will was not to be distributed under the seventh clause thereof until the death of the plaintiff, the testator’s son, Samuel, did not take a vested interest therein, and, as he has died before the plaintiff, his share falls into the residuary estate. See Matter of Baer, 147 N. Y. 348, and cases cited at page 354. Fifth. As the $300 given to the widow of Samuel was by the sixth clause of the will to be paid to her *“*if then alive,” that is, at the time of Samuel’s death, her right to that sum became fixed, and goes to her personal representatives. Sixth. Inasmuch as it appears that the plaintiff has on- hand only the sum of $356.09 (paragraph 13) to be distributed, the further questions raised by counsel need not be discussed. There will be judgment accordingly, with directions for an accounting to be brought down to date. All questions as to costs are reserved until settlement of decision and judgment.

Judgment accordingly.