Opinion
Argued September 28, 1875
Decided October 5, 1875
Samuel Hand for the appellant.
J.N. Fiero for the respondent.
The will is entirely harmonious and every part may have full effect. It is only when the different clauses are irreconcilable upon any reasonable interpretation, that the latest clauses, as the last expressions of the will of the testator, are to have effect in preference to the earlier clauses of the will. ( Van Nostrand v. Moore, 52 N.Y., 12.) By the first clause the testatrix relieves her personal estate from the payment of debts, and substitutes her real property as a fund for that purpose, empowering the executors to sell so much thereof as should be necessary to pay her just debts. By the second clause she effectually bequeaths her personal property of every kind to her daughter-in-law, and by the third and last clause she devises all her real estate to her executors, in trust for the same daughter-in-law, for her life and the life of her husband, with remainder over to their children. This devise is subject to the power in trust vested in the executors to sell for the payment of debts. Although this is not expressed in terms it is clearly implied and is necessary to give effect to the intent of the testatrix. Upon any other construction every other part of the will must be nullified, and with this qualification and limitation of the devise, clearly in the mind of the decedent, every part of the will can stand. ( Kinnier v. Rogers, 42 N Y, 531.)
The sale of the real property by the executors, in the exercise of this power, operated as a conversion of the realty sold into personalty as to so much of the avails as were required for the payment of debts. Whether the power conferred, not mandatory but contingent, depending upon a necessity to sell, and to some extent discretionary with the executors, stamped upon the real property thus put at the disposal of the executors the character of personalty, or whether the proceeds of the sale of the realty in excess of that which was required for the payment of debts was to be regarded as real or personal property, are not important questions, as all the estate, whether real or personal, took the same direction under the will. The executors could only sell under the power to provide for debts, with the payment of which they were charged as executors. They were not charged with the payment of the principal or interest upon the mortgages of the real estate of the decedent. By statute the devisee was bound to satisfy and discharge the mortgage and was not permitted to resort to the executor, there being no express direction in the will that the mortgage should be paid by the executor. (1 R.S., 749, § 4; Johnson v. Corbett, 11 Paige, 265; House v. House, 10 id., 158.) As trustee, taking the property for the use of the daughter-in-law of the testatrix and her husband for their lives, there was no power of sale vested in the present respondent. His powers as trustee were limited and did not include a power of sale, and he could only sell as executor and for the payment of debts for which he could be resorted to as executor, and for the payment of which, but for the will, the personalty would have been the primary fund. He could not, therefore, sell any of the real property for the payment of a debt secured by mortgage upon the property devised, and it follows that the avails of that sold for the payment of debts could not, to the prejudice of creditors not secured by mortgage, be applied to the payment of mortgage debts. The payments upon the mortgage were, so far as appears, voluntary, and whether the testatrix was personally bound for the mortgage debt does not appear, and in the absence of any compulsory process by the mortgage creditor to collect the debt of the executor, is immaterial. The surrogate was right in adjudging that such payments were a diversion and a misapplication of the fund held for creditors, and unauthorized, and in disallowing the claim of the executor to be allowed for the payments to the extent of the respondent's claim. The executor took no objection to the judgment, or its validity as against him, neither could he have done so; the judgment was conclusive against him. The controversy was between the creditor and the executor and not with the devisees, as the creditor was not seeking to enforce his judgment against them or their property, and the decision did not affect them or their interests.
The judgment of the Supreme Court and the decree of the surrogate should be affirmed with costs.
All concur; MILLER, J., not sitting.
Judgment and decree affirmed.