Opinion
October 4, 1907.
Charles L. Woody [ George D. Yeomans with him on the brief], for the appellants.
Cyrus V. Washburn [ George W. Sickels with him on the brief], for the respondent.
While the first clause of the will contains an imperative direction to sell the real estate, and standing alone would convert the realty into personalty, it is modified by the next two clauses, which make such sale depend on the discretion and consent of Herbert Fearn. It cannot take place at all except by his consent. The corpus is left undisposed of by the will. The trust created is to collect the rents and pay expenses, and use one-half the net income to pay off the mortgage on the land and pay the other half over to Herbert Fearn until the land should be sold by his consent. If he do not consent, the power of sale must end with his life. The trust must also end then, for it is only for his benefit, and also only an incident of the power of sale. The power of sale does not survive for the purpose of a distribution, for the corpus is not disposed of or distributed by the will. If the will manifested an intention of the testator that there should be in the end, and at all events, a sale and distribution, then we would have a very different case; the power of sale would have to survive to save the intention and scheme. The cases of Barber v. Cary ( 11 N.Y. 397), Kissam v. Dierkes ( 49 N.Y. 602) and Gulick v. Griswold ( 160 N.Y. 399) therefore apply. Section 154 of the Real Property Law is not to be considered as it is not retroactive ( Gulick v. Griswold, supra); and besides, title was vested in the defendant before the said section was passed.
The case is one which a trial judge may consider difficult and extraordinary, and the extra allowance was properly granted.
The judgment should be modified by reducing the amount of damages to two-fifths thereof, and the allowance proportionately.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Judgment modified by reducing the amount of damages to two-fifths of the sum allowed, with a proportionate reduction of the extra allowance, and as modified affirmed, without costs.