Charles W. Carpenter and Walter Carpenter, as Executors, etc., of Eliza Carpenter, Deceased, Respondents, v. Thomas J. Bonner and Others, Defendants. Charles W. Carpenter, as Purchaser in Foreclosure, Appellant

Charles W. Carpenter and Walter Carpenter, as Executors, etc., of Eliza Carpenter, Deceased, Respondents, v. Thomas J. Bonner and Others, Defendants. Charles W. Carpenter, as Purchaser in Foreclosure, Appellant. "Will—an imperative power of sale, although discretionary as to the time and circumstances of its exercise by executors, passes to an administrator with the will annexed. A testator by his will, referring to his executors, provided as follows: “Iauthorize and empower them, at their discretion, to sell and convert all my real estate, ^nd I direct them to divide the net proceeds of both real and personal estate into three equal and separate portions or funds.” Held, that the words “'at their discretion ” related to the'time at which, and the circumstances under which, a sale might be made, but were not intended to give any discretion as to whether or'not a sale should be. made; That the direction to sell was mandatory, and that the power, not having been exercised by the executors, might be exercised- by an administrator with the will annexed,. Appeal by Charles W. Carpenter, as purchaser in foreclosure, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of West-' ■Chester on the 27th day of November, 1897, confirming the report ■of a referee, and requiring the said appellant to complete his purchase of the premises sold under foreclosure in the action. The 2d article contained in the will of Gilbert B. Hart, deceased, referred to in the opinion, i.s as follows : “ Second. I authorize and empower my executors, at their discretion, to convert into money my personal'property, except such parts ■of it as are- hereinafter' bequeathed,, and I authorize and empower them, at their discretion, to sell and convert all my real estate, and 1 direct them to divide the net proceeds of both real and personal •estate into three equal and separate portions or funds, and to invest the same on good security, and to keep them as separate and distinct funds or portions, with power to collect arid reirivest the same-, from tithe to time, as may be expedient or necessary, and to hold and dispose of said three funds in trust as follows: ” Then follow directions us to the disposition of .the said three funds. Charles H. Wells, for the appellant. Frost & Manser, for the respondents. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The title to the premises which the appellant purchased on the foreclosure sale in this action depends upon the validity of a sale made by Coleridge A. Hart, as administrator with the will annexed, under a power of sale contained in the will of his father, Gilbert B. Hart, deceased. The rule in regard to the exercise of such a power by an administrator with the will annexed was recently considered and applied by this court in the case of Clifford v. Morrell (22 App. Div. 470). There is no objection or obstacle to its exercise by such an administrator where no element of personal discretion is involved, and the power of sale is imperative under a fair construction of the will. In the present case it is not necessary to review at length the various provisions of the long will in which the power is contained. It is enough to say that we deem the direction in the 2d article, in respect to the sale and conversion of the real estate and the investment of the proceeds, sufficiently absolute and. mandatory to authorize the exercise of the power by an administrator with the will annexed, in default of its exercise by the executors named in the will. It is true that the testator empowers his executors, “ at their discretion,” to sell and convert all his real estate; but the context leaves no doubt that this phrase was merely intended to relate .to the time at which, and the circumstances under which, a sale might be made, and was not designed to vest them with any discretion whatever as to the question whether they should sell or should not sell. The testator manifestly intended that his real estate should be sold and that the proceeds should be invested in three separate funds. At the same time he left his executors, at liberty to determine the precise time when the sale should be made, and left them at liberty to make it under such circumstances as should be most favorable to the parties interested. We find nothing in the 10th article authorizing the executors to make needful repairs on the real estate, or in any other part of the will, which cannot readily be harmonized with the view we have taken of the character of the power conferred by the 2d article. We entertain no doubt that the sale by the administrator with the will annexed conveyed a good title, and we think the purchaser should be required to complete his purchase. The order appealed from should be affirmed. All concurred. Order affirmed, with ten dollars Costs and disbursements.