Kilpatrick v. Barron (125 N.Y. 751, 1891)

The following is the opinion -in full:

“ The question whether a good title to the house and lot was tendered to the plaintiff, turns upon the true construction of the will of Thomas H. Geraty. If the six daughters of the testator took upon his death an absolute vested estate or interest in the house and lot or its proceeds, subject only to the right of the unmarried daughters until marriage to occupy the premises, but terminable on the death of the daughters Agnes K. and Ada H. Geraty, if that event should first occur, the title tendered would not, we think, be subject to reasonable doubt on the ground that the time of sale fixed by the will was anticipated. Although one of the daughters is still unmarried, and the two daughters upon whose lives the right of occupation was limited are still living, yet as all the children of the testator, including Josephine, the unmarried daughter, together with the executrix of the will of the deceased daughter Mrs. Fagan (acting under a valid power), have united in the conveyance, the case is clearly within the rule that where by the will the exercise of a power of sale given to executors is postponed for the benefit of legatees or devisees during the intermediate period, the execution of the power may be accelerated by the consent of the executors and all the persons interested, provided the persons interested and who join in the conveyance are sui juris, and the conveyance is not in contravention of any trust and is consistent with the substantial purpose of the testator in creating the power. (Perry on Trusts, § 783, and cases cited; Garvey v. McDevitt, 72 N. Y. 563; Hetzel v. Barber, 69 id. 1.)

“ The postponement of the execution of the power of sale in the present case was solely for the benefit of the unmarried daughters. All the daughters have married except one, and she has become a member of a religious order and will probably never marry, or desire to occupy the house.

“ Bnt the contention on behalf of the plaintiff is that by the true construction of the will the persons who are entitled to the proceeds of the sale of the house and lot, cannot be ascertained until the happening of one of the events upon which the power of sale was limited, viz.: the marriage of all the daughters or the death of the daughters Agnes K. and Ada H. The claim is that the. gift of the proceeds of the sale-directed is not to the six daughters of the testator, but to such of them as should survive the period of distribution, and in case of the death of one or more of them prior to that time,, to the then surviving daughters and to the descendants then living of any deceased daughters. If this construction is sound, then there can be no doubt, we think, that the title tendered to the plaintiff was insufficient, because it did not purport to-bind and in the nature of things could not bind the interests-of the children of the testator’s daughters, either born or who might come into being and be living and surviving the mother at the period appointed for the division.

“ The question whether a devise or legacy is vested or contingent, or if vested, whether it is subject, to be divested by an executory gift made to take effect in defeasance of a prior gift, often presents one of the most difficult and perplexing problems which can arise in the construction of wills. The legal rules which govern the subject are qualified by so many nice refinements and distinctions, and are so complicated with the question of the testator’s intention, to be drawn from obscure words or phrases, and as to which judges may and aften do differ, that one may well hesitate in very many cases as to his conclusion.

“ The construction of the will now before us is not an exception. The courts below have differed and the members of this court are not agreed upon the point involved. The general scheme of the testator is obvious, which was to vest his estate in his executors as trustees during the lives of his children respectively, in shares, and that the children should have the income of their shares respectively during life, the corpus on their death to go to their issue. It was his primary general purpose, that the descendants of his children should take the fee or absolute ownership of his property and that the parents should have an equitable life estate only. It seems to be conceded that the trust as to the house and lot was not, in view of section 56 of the statute of uses and trusts, lawfully constituted. But however this may be, is not material. If the trustees took the title the trust would terminate when the- purpose of the trust was accomplished, and if the trust was invalid, the title would vest in the heirs of the testator subject to the execution of the trust as a power.