#### John Anderson, as surviving, executor, of Isaac DeMott, deceased, *vs.*Robert A. Davison.

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

*Filed December,*14, 1886.)

1. Will — Construction of — Powek of sale contained in will — When IMPERATIVE.

A power to sell contained in a will, though described in words necessarily empowering the executor to do so, is imperative when the purposes of the will require a sale.

2. Same — Not inconsistent with devise in fee to residuabt legatee.

If a power of sale given by a will can be executed when the fee is devised to residuary legatees, the power is not inconsistent with the devise.

Case submitted on a statement of facts agreed upon.

The will is as follows :

*First.*— -I give and bequeath to my wife, Jane DeMott, the use of the choice of two rooms of my dwelling honse, during her natural life, and also the use of ten thousand dollars to be paid to» her annually, by my executors herein named, during her natural life, to be accepted and received by her in lieu of dower.

*Secondly.*— I give and devise to my grandchildren, Laura DeMott and Theodore DeMott and Julius DeMott and Lydia DeMott and Walter DeMott, the sum of four thousand dollars to be paid to each of them as soon after my decease as they arrive at twenty-one years of age.

*Third.*— And I hereby give and bequeath to my only son, Charles S. DeMott, and lastly as to all the rest, residue and remainder of my real and personal estate, goods and chattels of what kind and nature soever.

*Fourth.*— I do hereby nominate and appoint my son Charles S. DeMott and my brother Daniel DeMott and John Anderson to be the executors of my last will and testament, hereby revoking all former wills by me made.

*Fifth.*— I hereby empower my said executors to sell all my real estate, private, or public sale as to the best advantage.

The facts are sufficiently stated in opinion.

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      *A. M. Welles,*for plaintiff; *Robert A. Davison,*defendant, in person.

Pratt, J.

The question in this case is whether plaintiff as executor has the power to sell lands of his testator.

The will of plaintiff’s testator contains a power of sale, coupled with no trust. Before the creation of the power, the testator had devised to his son all of his real estate. There is no direction in the will as to what disposition shall be made of the proceeds of the sale. But there are a number of specific legacies, amounting in the aggregate to $80,000. The personal property left by testator amounted to $20,000, and there were debts to amount of about $3,000.

The residuary clause to the will seems to blend the real and personal property in one fund. There is no specific devise of real estate, but the legacies are made payable out of the whole estate without distinction, so far as any language in the will is concerned. It is plain from reading the whole will that the testator intended the legacies to be charged upon the realty. *Hoyt*v. *Hoyt,*85 N. Y., 142; *Scott*v. *Stebbens,*91 N. Y., 605.

The clause conferring the power is ■ as follows: (first,) I hereby empower my executors to sell all my real estate, private or public sale, as to the best advantage.

It will be observed that the language is clear, and emphatic, and leaves no room for conjecture. Nothing can be more manifest than the fact that the testator intended to authorize the executors to sell his real estate. The surrounding circumstances all show such an intention. The giving of legacies far beyond the amount of his personal property, and the direction to set apart ten thousand dollars, and invest it for the use of his widow, make the will inconsistent with any other theory.

Such a power can be upheld by authority. *Crittenden*v. *Fairchild,*41 N. Y., 289; *Scott*v. *Stebbens,*supra; *Kinnear*v. *Rogers,*42 N. Y., 537.

A judgment should be entered for the plaintiff upon the case submitted, requiring the defendant to accept the plaintiff’s deed, and to pay the consideration without costs.

Dykman, J., concurs.

Barnard, P. J.

The intent of the will seems to be plain that the entire estate, real and personal, is charged with the payment of the debts and the legacies named in the will.' It is only the “rest residue of my real and personal estate ” which is given to the son, Charles. If this be the true construction of the will, the sale is imperatively ordered. A power to sell, although described in words necessarily empowering the executor to do so, is imperative when the purposes of a will require a sale. *Mott*v. *Ackerman,*92 N. Y. 539.

*50If tbe power of sale was imperative, a sale could be made even by tbe administrator, with tbe will annexed. *Cooke*v. Platt, 98 N. Y. 35.

A power of sale given by will can be executed when the fee is devised to residuary legatees. Tbe power is not inconsistent with tbe devise. *Crittenden*v. *Fairchild,*41 N. Y., 289.

Tbe facts in this case show a necessity of tbe sale for tbe purposes of tbe execution of the provisions of tbe will. By its terms, $10,000 was to be invested to produce an annual income to tbe widow for life, and $20,000 was given absolutely to four grandchildren. There was never enough of the personal estate to raise these sums after tbe debts were paid, and tbe residuary legatee, who was tbe acting executor, has in some way lost it. The infant grandchildren should not be held responsible for tbe mismanagement of tbe executor. Tbe title is- therefore good .and tbe defendant should take tbe same.