(78 Hun, 429.)

#### WILLIAMS et al. v. HADDOCK.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Vendor and Purchaser—Contract— Effect as to Executors of Parties.

Where a contract for the sale of land provided that the stipulation therein should apply to and bind the heirs, the executors, etc., of the parties, and the vendor died before the day named for completion, the executors may waive a provision of the contract that, unless completed on the day named, the rights of the vendee should ipso facto cease.

Appeal from special term, New York county.

Action by George G. Williams and another, executors, against Katherine Van Wyck Haddock, impleaded, for specific performance of a contract to convey land. There was a judgment in favor of plaintiffs, and defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

J. E. Swanstrom, for appellant.

C. A. Jackson and Manley A. Raymond, for respondents.

VAN BRUNT, P. J.

This action was brought to compel a conveyance by the heirs at law of one Catherine M. McCoskry of certain real estate contracted to be sold by the deceased in her lifetime, and for the purpose of determining whether, under the will of said decedent, and other instruments referred to, the infant defendant, appellant, and others, as heirs at law, have any beneficial interest in, or right to any part of, the real estate in question. The trial court adjudged, among other things, that no deed of conveyance by the said heirs at law is necessary, and that they have no interest in the said property and premises in question, and that, consequently, neither said infant, nor the defendant, her mother, is entitled to any interest in said property, or in the proceeds of a sale thereof, as heirs at law or otherwise. From this judgment this appeal is taken.

Catherine M. McCoskry died in the city of New York on the 22d of April, 1886. Her will was admitted to probate by the surrogate of the county of New York in February, 1887, and consists of a will executed in December, 1884, and two codicils, bearing date, respectively, September 3, 1884, and April 12, 1886. The appellant was the daughter of a nephew of the deceased, and therefore could not take under the statute .of distributions, being too far removed in relationship; and the question presented is whether the proceeds of the real estate in question are to be considered as real estate, or personal property. As has been already stated, at the time of the death of the testatrix she had contracted to sell the property in question; the contract providing that the same should be closed on the 18th of March, 1887, and that the purchaser should have the right and privilege of occupying and using said premises, as a tenant, until said date, or until the closing and consummation of said sale, if sooner completed. At the end of the *200contract was a clause which provided that in case of the failure of the purchaser to complete said contract on or before the 18th of March, 1887, all interest in the said premises, and all right and claim to a conveyance thereof, should, ipso facto, cease and determine absolutely, and the premises should be delivered over to the party of the first part. The. contract contained the further provision that the stipulations were to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. Before the time for the completion of this contract the vendor died. Upon the day fixed for its completion, the vendees were not ready to, and did not, complete the contract. The executors were ready and willing, on their part, to perform the contract in accordance with its terms and conditions. Upon the last day within which, by its terms, the contract was required to be completed, the executors waived the said stipulation, by executing an agreement extending the time for the performance of the contract by the vendees. This extension and waiver were given without obtaining the consent of the heirs at law of the deceased vendor; and it is now claimed by the appellant that such extension was without authority, and beyond the powers of the executors, and that, by virtue of the clause referred to in the contract, the same ceased to exist, and the property became real estate in the hands of the executors, to the proceeds arising from a sale of which the heirs ait law of the testatrix were entitled. The argument in support of this proposition seems to be based upon the clause of the contract making the stipulations therein binding upon the heirs, executors, administrators, and assigns of the respective parties. It is difficult to see how any additional rights were conferred or limitations imposed upon the personal representatives of the deceased by this clause, which would not have existed by operation of law. It is a familiar principle, in reference to the interpretation of contracts, that, although there are no express words making the same binding upon the personal representatives of a deceased party, yet they may be enforced by and against such representatives, and the contract is just as binding upon such representatives as though made so by express terms. Therefore, the introduction of the clause in question does not seem to have conferred any rights upon the executors of the deceased which they would not otherwise have enjoyed,, or to have imposed any restrictions upon their right of action which would not otherwise have existed. It will not be disputed that, even if time was of the essence of the contract, the testatrix, in her lifetime, would have had the power to have' extended such time of completion; and as the rights of the testatrix, under this contract, descended to her personal representatives, as long as such representatives acted in good faith, it is difficult to see why they did not possess the same powers, they representing the testatrix fully in respect to the obligations and rights under the contract. It is not claimed, had there not been this provision for forfeiture, that the executors would not have had the right to extend the time for the com*201pletion of this contract. If, under any circumstances, they have the right to extend the time, how can the insertion of this clause have abridged such right, if any force whatever is to be given to the clause making the stipulation binding upon the representatives? It is evident that it was the intention that the stipulations to be performed by the testatrix were to be binding upon her representatives; not the privileges which were conferred upon such personal representatives. And the question as to whether the enforcement of this contract upon its due date should be insisted upon was a privilege which they might possibly have had the right to enforce, but which was not absolutely certain, because, even where time is of the essence of the contract, a party may, under some circumstances, be excused from performance, and be allowed to fulfill his obligation subsequently. We cannot see, upon a consideration of the rights of these parties, how it is possible to hold that the executors, in respect to this contract, did not fully represent the testatrix, and have the right to use their best judgment, as long as they acted honestly and without negligence, upon the question as to whether these purchasers should be allowed an extension of time to complete a contract which seems to have been advantageous to the estate.

We do not think that there is any question of equitable conversion arising in this case. It is the ordinary case of a contract to purchase, the title to be completed at a certain time. The vendor dies before the times arrives for its completion, and the executors extend the time, in order that the purchaser may complete, and the contract is finally fulfilled. Unfortunate as it may be for this appellant that the result of the contract by the vendor has deprived her of a portion of the estate of the testatrix, because portions of her will had been declared void, we do not think that the ordinary rules of representation of executors in respect to the contract of their testatrix can be set aside in order that this apparent hardship may be obviated. We are of opinion, therefore, that the claim made by the appellant that the executors were without authority to extend this time, and that by force of the provisions of the contract the property therein described reverted to the estate of the testatrix, as real estate, is not well taken. The judgment appealed from should be affirmed, with costs. All concur.