Opinion
Argued November 29, 1887
Decided December 13, 1887
Charles W. Wetmore and Francis C. Barlow for appellants. Sidney F. Rawson for respondent.
We are of opinion that the motion was properly denied on the ground that Louisa Shaw Barlow was not a necessary or proper party to this action. It is undisputed that valid trusts were created as to the one-half of the residue of the testator's real and personal estate, which he gave to his executors and trustees; and that during the continuation of the trusts, to wit, during the lives of the testator's widow and of the several daughters, the title to the several quarters of real estate involved in the trusts was vested in the trustees. But the claim is made by Mr. Barlow that after the death of his wife his daughter might become entitled to the one-quarter of the real estate, and that therefore she should have been made a party.
We are of opinion that she never could take the real estate and that she had no title thereto or interest therein as realty, and that the whole title was vested in the executors and trustees. Construing all the provisions of the will together we think there was an imperative direction to sell the real estate, and there was therefore an equitable conversion thereof into personalty, and as to the rights of Louisa Shaw Barlow the property is to be treated as personal property.
The residue of the testator's estate both real and personal is mingled together and one-half there of is given to his executors upon the trusts mentioned. The trustees are directed to receive "the rents, profits and income thereof," which implies that they were expected to hold the real estate as well as the personal for a time until in the exercise of their discretion they could convert the same, and during that time they were to lease the real estate and receive the rents thereof. But after the death of each daughter the direction is that they should "pay over, transfer and deliver the principal of said one-fourth part together with any arrears of income to the heirs" of the daughter or to "such person or persons or to such uses" as the daughter might by her will appoint. This language shows that the testator contemplated that at the death of each daughter the one-fourth part put in trust for her benefit during her life should exist in the form of personal estate. The language used "to pay over, transfer and deliver the principal" is not appropriate if applied to real estate, and is only appropriate as applicable to personal estate. The principal together with any arrears of income was to be paid over, and it was supposed that the principal and income would both be of the same species of property, both personal.
The fifteenth clanse shows that it was intended by the testator that the property given to his daughters should pass to them in the form of personal estate. He says, "I give and bequeath," language strictly more applicable to personal than to real estate. Then the money paid in advance by him to either of his daughters and charged in his books of acconnt as advanced, was directed to be deducted without interest from the "sum bequeathed," and if it was real estate which the testator had in mind he would not have spoken of it as the "sum bequeathed." While the language contained in the seventeenth clause giving the power of sale is not, standing alone, imperative, yet when read in connection with the other clauses of the will, it should be so construed, and the discretion conferred upon the executors should be held to be a discretion only in reference to the time, mode of sale and the terms of sale. The sale was to be made for the purpose of carrying into effect all the provisions of the will, that is, for the purpose of making a division of the one-half among his daughters and for the purpose of the trusts, as to the other half, for the benefit of his wife and daughters and their heirs or appointees.
We, therefore, reach the conclusion, not without some hesitation and doubt, that by the terms of this will there was an equitable conversion of the real estate mentioned into personalty and that, therefore, Louisa Shaw Barlow was not a necessary or proper party defendant in this action. While precedents are not very valuable in a case like this where the decision must be based upon the peculiar phraseology of the entire will, the case of Morse v. Morse ( 85 N.Y. 53), bears a strong analogy to this and may be cited as an authority for our conclusion.
The order should be affirmed, with costs.
All concur.
Order affirmed.