§ 97. Certain devises to be deemed powers. A devise of real property to an executor or other trustee, for the purpose of sale or mortgage, where the trustee is not also empowered to receive the rents and profits, shall not vest any estate in him; but the trust shall be valid as a power, and the real property shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power. Formerly 8 77, Real Property Law of 1896, chap. XLVI, General Laws. 877. Certain devises to be deemed powers.— A devise of real property to an executor or other trustee, for the purpose of sale or mortgage, where the trustee is not also empowered to receive the rents and profits, shall not vest any estate in him; but the trust shall be valid as a power, and the real property shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.23

Section 77 was formerly 1 Revised Statutes, 729, section 56:

§ 56. A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to, the heirs, or pass to the devisees of the testator, subject to the execution of the power.24

66

Power of Sale. Before the Revised Statutes; executors did not acquire the inheritance simply by virtue of a devise of a power of sale.25 Sugden says, that "as far back as the reign of Henry the Sixth, it was laid down in a case in the Year Books, that if one devise that his executors shall sell his lands and die seised, his heir is in by descent and consequently the executors have only a power. A devise," in trust to sell" or to sell lands," but not a devise "that executors shall sell lands," carried a fee.27 The old law determining when trustees took a fee and when a mere power of sale is well stated in the first edition of Mr. Jarman's Powell on Devises.28 This section of the statute has been said to declare the pre-existing law.29 Now as formerly executors may by implication take the inheritance or fee.30

23 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 24 Repealed, chap. 547, Laws of 1896.

25 See below, under § 99, Real Prop. Law.

26 1 Sugd. Pow. 129; Bradstreet v. Clarke, 12 Wend. at p. 663. The case referred to by Sugden is given by

Digby Hist. Real Prop. (2d ed.), p.
346, note 2.

27 I Sugd. Pow. 130.
28 Vol. 1, p. 221.

20 Moncrief v. Ross, 50 N. Y. at p.

435.

30 Tucker v. Tucker, 5 N. Y. at p. 416; Kinnier v. Rogers, 42 id. 351, 534; Marx v. McGlynn, 88 id. 357; Robert v. Corning, 89 id. 225, 237.

Devise of a Power of Sale. Now by this section a devise of a mere power of sale to an executor or testamentary trustee does not carry the fee to him unless he is empowered to receive the rents.31 If he be empowered to lease or receive the rents, he takes the legal title, and it makes no difference that the rents are not disposed of by the testator.32 A power of sale given to an executor for the benefit of legatees is a general power in trust.33 But a merely discretionary power of sale in the executors for the purpose of distribution, even though connected with the right to receive the rents and profits of land, does not vest them with the legal title.34 A devise to devisees by name is not inconsistent with the devise of a power of sale to executors.35 Although a power of sale is not in terms peremptory, if the general scheme of the will requires a conversion, it will operate as a conversion.36 Where an absolute power of sale is given

31 Van Vechten v. Van Veghten, 8 Paige, 104; Germond . Jones, 2 Hill, 569; Campbell v. Johnson, I Sandf. Ch. 148; Thompson v. Carmichael's Exrs., id. 387; Tucker v. Tucker, 5 N. Y. 408; Leonard v. Burr, 18 id. 96, 108; Palmer v. Marshall, 81 Hun, 15; Kinnier v. Rogers, 42 N. Y. 531, 534; Manice v. Manice, 43 id. 303, 364; Vernon v. Vernon, 53 id. 351, 358; Morse v. Morse, 85 id. 53; Lent v. Howard, 89 id. 169; Weeks v. Cornwall, 104 id. 325, 339; Clift v. Moses, 116 id. 144; Steinhardt v. Cunningham, 130 id. 292; 4 Kent Comm. 322; Strauss v. Bendheim, 44 App. Div. 82, 85; Coann v. Culver, 188 N. Y. 9; Van Norden Trust Co. v. O'Donohue, 122 App. Div. 51; Foersch v. Schmidt, 55 Misc. Rep. 608; cf. Matter of Chase, 40 id. 616.

32 Hubbard v. Housley, 27 Misc. Rep. 276; s. c., 43 App. Div. 129.

33 Manier v. Phelps, 15 Abb. N. C. 123, 137; Russell v. Russell, 36 N. Y. 581; 99, Real Prop. Law.

34 Chamberlain v. Taylor, 105 N. Y. 185, 192; Palmer v. Marshall, 81 Hun, 15; Coann v. Culver, 188 N.

Y. 9.

35 Crittenden v. Fairchild, 41 N. Y.

289; Kinnier v. Rogers, 42 id. 531; Clift v. Moses, 116 id. 144; Skinner v. Quinn, 43 id. 99; Mellen v. Mellen, 139 id. 210; Taber v. Willetts, I App. Div. 285; Cruikshank v. Cruikshank, 39 Misc. Rep. 401; Matter of Arensberg, 120 App. Div. 463; Stebbins v. Turner, 55 Misc. Rep. 587, 594.

36 Lent v. Howard, 89 N. Y. 169; Mausbach v. New, 58 App. Div. 191; Kussell v. Hilton, 37 Misc. Rep. 642, 645; Phoenix v. Trustees of Columbia College, 87 App. Div. 438, 445; White v. Howard, 46 N. Y. 144, 162; Hobson v. Hale, 95 id. 588; Trowbridge v. Metcalf, 5 App. Div. 318, 321; Chamberlain v. Taylor, 105 N. Y. 185; Matter of McComb, 117 id. 378. (On all questions of conversion and intent, see Ackroyd v. Smithson, White & Tudor, Lead. Cas. in Eq. 1027, and notes); Clements v. Babcock, 26 Misc. Rep. 90, 97; Matter of Traver, 161 N. Y. 54, 57; Matter of Tatun, 61 App. Div. 513; Matter of Hammond, 74 id. 547, 557; Russell v. Hilton, 80 id. 178; Matter of Coolidge, 85 id. 295; cf. Clift v. Moses, 116 N. Y. 144; Fraser V. United Presbyterian Church, 124 id. 479.

to executors, the addition of words limiting the execution of the power to a definite space of time will be held advisory and not to restrain or limit the power of disposition.

37

Title Where Executors do not Take a Fee. Where the executors do not take the fee or inheritance, the title devolves by descent on the heirs of testator who take the rents and profits until the power of sale is executed,38 unless the land is otherwise devised,39 or the rents in equity belong to other distributees.40

When Legatees may Extinguish Power. Where the power in trust is a power of sale, and is exclusively for the benefit of legatees entitled to the fund, they may elect to take the real property instead, and call for a conveyance. But all must concur.41

Executors' Powers of Sale. As there is some obscurity, in the application of general principles, to this class of powers we may briefly outline the fundamental rules:

Powers of sale over lands may be given by settlors, or testators, to three classes of persons: (1) executors; (2) trustees; (3) grantees, devisees or legatees. As a general principle of the common law, excutors as such have not to do with real property, which descends if undevised, or passes to devisees, free of any power of

37 Chanler v. N. Y. El, R. R. Co., 34 App. Div. 305, 307; Deegan v. Wade, 144 N. Y. 573; cf. Will of Butterfield, 133 id. 473.

38 Lent v. Howard, 89 N. Y. 169; Sweeney v. Warren, 127 id. 427; Matter of Spears, 89 Hun, 49; Coann v. Culver, 188 N. Y. 9.

39 Embury v. Sheldon, 68 N. Y, 228:

40 Lent v. Howard, 89 N. Y. 169. Note in this connection that lapsed devises, now go into the residuary (Gerard's Titles 15th ed.], p. 371; Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Allen, 151 id. 243), and not as stated in Gerard's Titles (4th ed. 1896), 398; Gallavan v. Gallavan, 31 Misc. Rep. 282; s. C., 57 App. Div. 320; Moffett v. Elmendorf, 152 N. Y. 485. But a lapsed legacy may go to specific legatees (Matter of Botsford, 37 App. Div. 73). or to grandchildren, 2

R. S. 56, § 52; Matter of Hafner, 45 App. Div. 549. The former rule favoring the heir by construction (p. 241) is to some extent inconsistent with the modern rule relating to lapsed devises which now pass to residuary devisees.

41 McDonald v. O'Hara, 144 N. Y. 566; Mellen v. Mellen, 139 id. 210; Greenland v. Waddell, 116 id. 234; Prentice v. Jansen, 79 id. 478; Trask v. Sturges, 170 id. 482, 497; Hetzel v. Barber, 69 id. at p. 11; Reed v. Van Wert, 12 Barb. 113; Salisbury v. Slade, 160 N. Y. 278; Trask v. Sturges, 31 Misc. Rep. 195, 203; Taber v. Willets, 1 App. Div. 285; Roberts v. Carey, 84 Hun, 328; Hurrell v. Hurrell, 65 App. Div. 527; Parish v. Parish, 175 N. Y. 181; Van Norden Trust Co. v. O'Donohue, 122 App. Div. 51; 18 Harv. Law Rev. p.

22.

the executors,42 unless the will (a) gives them the estate; (b) or contains an express power of sale to the executors; (c) or requires them to take such a power by implication.

(a) When a will expressly gives the inheritance or fee to the executors, they of course take an estate by virtue of the will,43 and then a power of sale to them is merged in the fee, for a fee embraces all powers. But the estate need not be expressly given, for they may take a fee by implication. But under this section 97 of this act, a mere devise of a power to executors to sell or mortgage does not carry the fee to them, unless they are empowered to receive the rents; for the trusts may be as well executed as a power. At common law a devise of a power to executors who took no legal title was a common-law power,47 and not related to the Statute of Uses.48

49

46

(b) A devise of an express power of sale to executors did not necessarily carry the fee to them even at common law, a principle now again stated in this section of this act.50 But though it carry no title to the lands, an express power of sale to executors will, if for the benefit of any one else, now make them grantees of a power in trust to sell the land; 51 and meanwhile the inheritance if undevised descends by the ordinary rule, or goes as directed by the settlor.52 In this State a power of sale is generally, if not always, a power

42 Bergen v. Bennett, 1 Cai. Cas. I, 16; Barker v. Crosby, 32 Barb. 184, 187; Fowler v. Depau, 26 id. 224; Willcox v. Smith, id. 316, 337; Jackson v. Schauber, 7 Cow. 187, 197 (reversed on another ground); Russell v. Russell, 36 N. Y. 581, 583; Bogert v. Hertell, 4 Hill, at p. 512; Korsstrom v. Barnes, 156 Fed. Rep. 280.

43 1 Jarman's Powell, Devises, 233 seq., 245; 1 Williams' Executors, 451; 1 Sugden, Powers, 129 seq.; Siegel v. Auger, 13 Abb, N. C. at p. 368; Delafield v. Barlow, 107 N. Y. 535; Kinnier v. Rogers, 42 id. 531, 534; Marx v. McGlynn, 88 id. at p. 375.

44 Hetzel v. Barber, 69 N. Y. 1; Jennings v. Conboy, 73 id. 230; Matter of Ratheyn, 115 App. Div. 644.

45 Leonard v. Burr, 18 N. Y. at p. 108; Manice v. Manice, 43 id. at p. 364; Byrnes v. Baer, 86 id. at p. 219;

Robert v. Corning, 89 id. at p. 271; Marx v. McGlynn, 88 id. at p. 375; and cases cited, supra, note 30, p. 465, Real Prop. Law.

46 Tucker v. Tucker, 5 N. Y. 408; and see authorities cited in note 31, p. 466.

47 Strahan on Property, 166; Dean v. Dean (1891), 3 Ch. 150.

48 See under § 110, infra.

49 Page 465, supra; p. 480, infra; I Williams, Executors, 451; Bradstreet v. Clarke, 12 Wend. at p. 663. 50 Moncrief v. Ross, 50 N. Y. at P. 435.

51 See note 33, p. 466, supra; Manier v. Phelps, 15 Abb. N. C. 123, 137; Smith v. Bowen, 35 N. Y. 83, 89; Russell v. Russell, 36 id. 581; Willard, Eq. Juris. 487; Cutting v. Cutting, 86 N. Y. 522, 536.

52 Matter of Gantert, 136 N. Y.

106.

in trust.53

54

If a power of sale is not imperative or for the benefit of any one, it ought not to be regarded as a pure power in trust, but as a mere discretionary or naked power; and this distinction may Le important in questions involving the extinguishment of the power, or in the making of title by executors alone without the concurrence of devisees. If, however, a discretionary power of sale to executors is executed, it undoubtedly becomes a quasi power in trust, if the proceeds of sale are for the benefit of persons other than the donees of the power." 56

(c) A power of sale need not be express, but may be given to executors by implication (and such an implied power may be mandatory); e. g., where a sale of the land is directed, and a distribution of the proceeds is to be effected by them; 57 or where there is a devise of lands to executors to pay debts.58 Consequently it follows that the power to sell need not be in any particular language; and such is the law.59 But the power by implication must be reasonably clear,60 and, therefore, a power to executors to sell will not be implied from the mere fact that the lands are charged with the payment of debts.61 So a power to sell does not imply a power

53 Reed v. Underhill, 12 Barb. 113; and see below, next paragraph.

54 Phoenix v. Trustees of Columbia College, 87 App. Div. 438, 444; Fowler v. Depau, 26 Barb. 224; Scholle v. Scholle, 113 N. Y. 261, 270; Matter of Woodbury, 40 Misc. Rep. 143; Lindo v. Murray, 91 Hun, 335; Towler v. Towler, 142 N. Y. 371; Little Falls Nat. Bank v. King, 53 App. Div. 541, 546; Graham Ackerly, 120 id. 430.

V.

Salisbury v. Slade, 160 id. 278; Phillips v. Davies, 92 id. 199, 203; Corse v. Chapman, 153 id. 466; Siefke v. Siefke, 34 Misc. Rep. 77; Dorland v. Dorland, 2 Barb. 63; Mendell v. Levis, 40 Misc. Rep. 271, 273; Salisbury v. Ryon, 105 App. Div. 445, 447; O'Donaghue v. Smith, 184 N. Y. 365; Burnham v. White, 117 App. Div. 515; Boehenke v. McKeon, 119 id. 30.

58 Matter of Gantert, 136 N. Y. 106; Coogan v. Ockerhausen, 55 Super. Ct. 286; s. c., II Civ. Pro. Rep. 315.

59 Cahill v. Russell, 140 N. Y. 142; Reynolds v. Denslow, 80 Hun, 359.

60 Paget v. Melcher, 42 App. Div. 76; Hobson v. Hale, 95 N. Y. 588; Murdock v. Kelly, 62 App. Div. 562. 61 Matter of Will of Fox, 52 N. Y. 530; Dill v. Wisner, 88 id. 153, 158.