#### Albert W. Van Winkle, Pl’ff, *v.*Sylvanus L. Fowler, Def’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

,1. Construction of a will—When power of sale of the real estate WILL BE IMPLIED.

Where testatrix devised property to her executor "In trust that my said executor will use the same for the purpose of clothing, educating and maintaining my said children,” *Held,*this is a clear power conferred upon the executor to use the estate for a specific purpose, and this necessarily gives him the power to sell the real estate, for the trust will fail unless the executor can convert the real estate into money.

2. Same—Power of sale of the real estate implied when necessary to carry out the will.

A power of sale may he implied where the circumstances are such that the will cannot he carried out without such an implication. Barnard, P. J., dissenting.

The parties in this action agreed to a statement of facts pursuant to section 1279 of the Code, to constitute the case for the general term of this court. On January 2, 1889, the plaintiff entered into a contract to sell certain real estate in the city of Brooklyn, state of New York, to the defendant, to give him a good and sufficient deed, with covenants against the acts of the grantor, and that such conveyance should vest in defendant a good and indefeasible estate ” to the premises in question.

This property was devised, *inter alla,*to Allen Hubbard, charged with the payment of certain legacies. He died intestate, leaving nine children, all of whom are now living, except a daughter, Sarah E. Higgins, who died, leaving a will, wherein she appointed her husband, Joseph Higgins, executor. All the heirs of Allen Hubbard have conveyed their interest in the premises in question to plaintiff; and Joseph Higgins, as executor of Sarah, has conveyed to plaintiff all the right, title and interest which she had in said premises at the time of her death.

•Plaintiff duly tendered a deed to defendant, pursuant to the terms of the contract, but the defendant refused to receive said deed, and refused to complete his said contract, for the reason that the will of Sarah E. Higgins (under whom plaintiff claims), contains no power of sale authorizing the executor to convey said property; while, on the other hand, the plaintiff contends that the executor, under the will of said Sarah E._ Higgins, had power to sell and convey the interest of said testatrix in said real estate to the plaintiff.

The questions submitted to the court upon this case are as follows:

*First,*Does the will of Sarah E. Higgins contain an implied power of sale so that the conveyance by Joseph S. Higgins, as executor of all the right, title and interest which said testatrix had in the above described premises, vests in the plaintiff a valid title to her interest in said *812premises? If this question is answered in the affirmative the judgment shall be rendered against the defendant directing him to complete his contract for the purchase of said premises. If answered in the negative, judgment is to be rendered in favor of the defendant for his costs and disbursements.

The material portions of the will are sufficiently set out in the opinion of the court.

*Herbert G. Hull,*for pl’ff; *W. M. Safford,*for def’t.

Pratt,

J.—The sole question in controversy, in this case, relates to the construction of the following clause in the will of Sarah E. Higgins :

Item. I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. (3-raves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June 12th, A. D. 1816, or all the right, title and interest which I, as one of the children of Allen Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmina H. Graves, in trust that my said executor will use the same for the purpose of clothing, educating and maintaining my said children, and in case my said executor shall die before the whole of the estate which shall come to him shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands at the time of his decease shall be divided equally between them, share and share alike, and in case any of my said children shall die without issue, the survivor shall take such deceased child’s share.

We think it clear, from all the facts and circumstances submitted, that this clause must be held to give a power of sale to the executor.

A power of sale may be implied where the circumstances are such that the will cannot be carried out without such an implication.

The clause gives the property to the executor in trust, for a specified object, which cannot be carried out, except by a sale of property.

It is not very clear what was in the mind Of the testatrix as to whether the property she was to receive under the will of Mrs. Graves was real estate or money, but she used language sufficiently comprehensive to include both.. She gives the balance of money, also “all the right, tille and interest which I, as one of the children of Allen Hubbard, am entitled to under and by virtue of the last will of Elmina H. Graves.” The title is thus clearly vested in the executor in trust.

The sole object the testatrix had in view, by this clause of the will, was that the property, whether personal or real, should be used for the benefit of her children.

As she stated in the will: “In trust that my said execu*813tor will use the same for the purpose of clothing, educating and maintaining my said children.”

Here is a clear power conferred upon the executor to use the estate for a specific purpose.

The whole object of the trust will fail in this case, unless the executor can convert the real estate into money.

The plaintiff must have judgment on the agreed statement of facts, with costs:

Dykman, J., concurs.

Barnard, P. J.

(dissenting.)—Allen Hubbard was the owner in fee-simple of the land in question, when he died, by devise from Elmina H. Graves. The fee, however, was chargeable with legacies, which there was no personal estate to satisfy. Hubbard died intestate, leaving nine children. One daughter has since died, leaving nine children, and leaving a will which contains this clause:

“I give and bequeath to my executor all the balance of the money that I shall receive from the estate of Elmina H. Graves, under and by virtue of her said will and testament, dated Cleveland, Ohio, June 12, A. D., 1876, or all the right, title and interest, which I, as one of the children of Allen Hubbard, deceased, am entitled to under and by virtue of the last will and testament of the said Elmina H. Graves, in trust that my said executor will use the same for the purpose of clothing, educating and maintaining my said children, and in case mjr said executor shall die before the whole of the estate, which shall come to him, shall be expended for the benefit of my children, as aforesaid, then it is my will that whatever balance shall remain in his hands at the time of his decease shall be divided equally between them, share and share alike.”

The executor of Sarah E. Higgins conveyed as such the interest of Sarah E. Higgins in the land, and the question is whether by the clause in question he had power to sell her own ninth interest in the property. The will contains no express power of sale. The testatrix included a bequest of money to be received, and, also, all right, title and interest to whatever she was entitled. The trust was to use the same for the support of the children. The trust to use a fund made up of real and personal property, in the,absence of a specific direction does not warrant the conclusion that the testator intended a conversion of the real estate into personalty. The duty of making a final division of the real estate does not imply a power of sale. *Hobson*v. *Hale,*95 N. Y., 588; *White*v. *Howard,*46 id., 144. There is nothing in the will to show an intent that the executor should not use the land as land, and the sale thereof is not justified. There should, therefore, be a judgment for the defendant upon the submitted case, with costs.