CONOVER v. HOFFMAN

CONOVER v. HOFFMAN. June, 1858. Affirming 1 Bosw. 214. A power of sale in a will is not revoked by a different disposition of tlie estate, made by a codicil, unless there is some inconsistency between the exercise of the power, and some part of the codicil. Gustaras A. and John J. Conover brought this action in the New York superior court against Ann C. Hoffman, to have a contract for the purchase of land in New York specifically performed by defendant. Defendant refused to accept a conveyance on the ground that the executors of James R. Smith (who conveyed to one Dyson, under whom plaintiff claimed title) had not power to convey. The testator’s will gave a power of sale, but defendant objected that it was revoked by a codicil. The will authorized the executors to sell the whole or any part of the estate, real and personal, of the testator, and to execute good and sufficient conveyances thereof; and directed the payment, out of the proceeds of the estate, of the testator’s debts, funeral charges and expenses; and that the residue of the estate (unless the same or any part thereof should be disposed of by codicil), be distributed according to law, as in a case of intestacy. The codicil, in the first clause, ratified and confirmed the will, except so far as any part of it might be revoked or altered by the codicil; and, in addition to the powers granted to the executors in relation to the estate, authorized them to lease the estate or any part of it, except such as should otherwise be disposed of, in their discretion and as they should find the situation of the testator’s affairs to require. Specific dispositions were then made of portions of the estate, after which, by the twelfth clause, “ all the rest, residue and remainder of the estate of every kind,” was given to the executors, in trust, that the remainder should be equally divided to and among the four children of the testator, share and share alike, and to their respective heirs. It was then expressed to he the testator’s will, that the sum of one thousand five hundred dollars should be set . apart by the executors for the support and education of a son and daughter, until they arrived at twenty-one, and if that sum should not be sufficient, a further sum from their respective shares of the estate, as should be necessary; that the son should not come to the full possession and enjoyment of his portion until twenty-five; nor should he have the power to promise, pledge, mortgage, or dispose of any part of it before that time, but should be entitled to receive the income between twenty-one and twenty-five. It was then directed that the three daughters at twenty-one should have the privilege of expending and appropriating, with the consent of the executors, one-third of their portions, that the remaining two-thirds should be held separate, free from the control and debts of their husbands; giving, however, on the death of the wives, the income of the reserved portions to the husbands during life; and, after death, to the children of the daughters; and if either of the daughters should die without lawful issue, or having issue which should not attain twenty-one, and without issue, then the share of said daughter after the death of her husband, or if no husband living at her ' death, should go to the testator’s other children, share and share alike, such issue to take the portion that would have belonged to his, her, or their father or mother. The superior court held that defendant was bound to accept the title (reported in 1 Bosw. 214); and she appealed. William Ourtis Noyes, for defendant, appellant; Cited Arnold v. Gilbert, 5 Barb. 190; and insisted that the codicil revoked the discretionary power of sale given to the executors. Edwards Pierrepont, for plaintiffs, respondents; Cited Westcott v. Cady, 5 Johns. Ch. 334; Willett v. Sandford, 1 Ves. 186; Hone v. Van Schaick, 3 Barb. Ch. 488; Williams on Ex. 8; Kane v. Astor, 5 Sandf. 467; Bradhurst v. Bradhurst, 1 Paige, 331; Covenhoven v. Shuler, 2 Id. 122; Rathbone v. Dyckman, 3 Id. 9; Crosby v. Wendell, 6 Id. 548; Van Vechten v. Van Veghten, 8 Id. 104; Bogert v. Hertell, 4 Hill, 492; Gott v. Cook, 7 Paige, 521; Bunce v. Vander Grift, 8 Id. 37; Lorillard v. Coster, 5 Id. 172; Hawley v. James, Id. 318; Haxtun v. Corse, 2 Barb. Ch. 506; Smith v. Kearney, Id. 533 ; Arnold v. Gilbert, 5 Barb. 190; Vail v. Vail, 7 Id. 226; Burrill v. Sheil, 2 Id. 457; 2 Story Eq. Jur. § 1131, &c.; Kane v. Gott, 24 Wend. 641; Bench v. Byles, 4 Mad. 187; Martin v. Sherman, 2 Sandf. Ch. 341; Marsh v. Wheeler, 2 Edw. 156; Drake v. Pell, 3 Id. 251; Bradley v. Amidon, 10 Paige, 235; 4 Kent Com. 597, and notes; Sweet v. Chase, 2 N. Y. (2 Comst.) 73; De Kay v. Irving, 9 Paige, 521; Parks v. Parks, Id. 107; 5 Den. 646. In Skinner v. Quin, 43 N. Y. 99 ; reversing 49 Barb. 128. [MAJORITY — T. R. Strong, J.] By the Court. T. R. Strong, J. [After stating the facts.] — The point made by the appellants is, that the codicil was a revocation of the discretionary power of sale confirmed by the will, buf I am satisfied the position cannot be maintained. The codicil contained nothing manifesting an intention to revoke or qualify the power of sale in the original will in reference to " all the rest, residue and remainder of the estate,” in the twelfth clause of the codicil, which embraced the premises in question. That clause of the codicil purported simply to provide how and for whose benefit the residuary estate should be disposed of, in whatever form it might be when the- division by the executors was to be made, whether real or personal, or part real and part personal. Every part of it was entirely consistent with the power of sale to the executors, and might be fully executed, whether or not the power of sale should be exercised. It was at least necessary, in order to nullify the power of sale as to the land contracted to be purchased by the defendant, that there should be an inconsistency between the exercise of the power and some part of the codicil; if it might stand and the codicil have full operation, it remained in force. The continuance of that power obviously was important in reference to the payment of debts and legacies, and carrying out the design of other parts of the codicil; and viewing the whole instrument, I think it clear that was intended by the testator. There being no other questions in the case, the judgment must be affirmed.