Opinion
July Term, 1901.
Present — Van Brunt, P.J., O'Brien, Ingraham, McLaughlin and Hatch, JJ.
Judgment affirmed, with costs, on opinion below.
The following is the opinion written by the court below:
The right to challenge bequests prohibited by the act of 1860 (chap. 360), is not confined to the widow or the next of kin specifically named therein. ( Harris v. Am. Bible Society, 4 Abb. Pr. [N.S.] 421; Rich v. Tiffany, 2 App. Div. 25.) Amherst College v. Ritch ( 151 N.Y. 282) is not to the contrary, for it cites with approval the Harris case, wherein it was distinctly held that the prohibition of the statute is peremptory and may be insisted upon by any person who would derive a benefit therefrom. The one-half of testator's estate not effectually disposed of by his will must be treated as real estate, and it descended immediately upon his demise to his heirs at law. While apt language has been employed to work a conversion, the conversion fails, however, as to that part of the will that is invalid. A power to executors for an invalid purpose will not create a conversion, and where the object for which the sale of lands is directed fails in whole or in part, there is no equitable conversion of the whole, and there is a resulting trust in favor of the heirs at law pro tanto. The land in such a case retains its original character and descends to the heirs. ( Chamberlain v. Chamberlain, 43 N.Y. 431; Chamberlain v. Taylor, 105 id. 185; Gourley v. Campbell, 66 id. 174; Read v. Williams, 125 id. 566; Betts v. Betts, 4 Abb [N.C.] 419). As the real estate descended from the father of the decedent the heirs entitled to the one-half not disposed of are the plaintiffs and the defendants Maria Conor and James Connington, who appear to be the decedent's only heirs on the paternal side. The defendant Dwyer has a power in trust for the purpose of carrying out the valid provisions of the will and can, therefore, sell the realty to pay the institutions their one-half; the remainder of the proceeds, after making due allowance for the debts and widow's dower, to descend to the heirs above named as real estate. ( Wager v. Wager, 89 N.Y. 161. )