Argued January 17, 1884
Decided February 8, 1884
William W. Badger for appellant. E. Countryman for respondent.
In January, 1879, Henry D. Ranney died in the city of New York, leaving a last will and testament, in which he appointed Lafayette Ranney and Thomas Russell executors, who were also to act as trustees in the execution of the provisions of the will. He gave and devised to his executors, for the uses and purposes mentioned in his will, all his residuary estate, and directed them to consolidate it into a safe and permanent fund, which would yield a regular interest or income; gave them power to sell and convey real estate, loan and invest money as the best interests of his estate might demand, and directed that the entire interest or income thus derived, after paying taxes, repairs to houses, and all necessary expenses and disbursements connected with his real estate, should be paid over to his wife for her support through life; and after the decease of his wife, he directed the estate to be distributed as mentioned in the will. After his decease the will was admitted to probate, and letters testamentary were issued to both of the executors, and they qualified and entered upon the discharge of their duties under the will. Among the lots of land left by the testator as a part of his residuary estate, was a lot in the city of New York, with a house thereon, and on the 10th day of April the executor Ranney entered into an agreement in writing with the plaintiff for leasing the house and lot to him for a term of three years from the first day of May, 1879, at an annual rental of $1,200, the agreement purporting to be between the two executors as parties of the first part, and the plaintiff as party of the second part; and it contained a stipulation that upon payment by the party of the second part of all claims under the lease, and the further payment of the sum of $12,000, the parties of the first part would terminate the lease, and convey the property by deed to the party of the second part; provided, however, that such purchase should be perfected within two years from the date of the agreement. The agreement was signed by Ranney alone as executor, and by the plaintiff. The other executor, Russell, refused to execute it, objecting to the clause giving to the plaintiff the option to purchase within two years. The plaintiff was at the time informed by Ranney of this objection and refusal on the part of his co-executor, but he was told by Ranney that one executor was as good as two. At the end of the two years the plaintiff claimed to have exercised his option to purchase, and offered to perform on his part, but the defendant Russell refused to execute any deed, and perform the agreement, upon the ground that he was not bound thereby. Then this action was commenced to compel the specific performance of the agreement; and the court at trial term dismissed the complaint on the ground that the contract was not binding upon both executors, and that both could not be compelled to join in the conveyance.
By the terms of the will the title to the real estate left by the testator was vested in the two executors, and it is settled beyond any controversy that in such a case it can be conveyed only by a deed executed by both. Under this will the executors had a discretion to exercise as to the time when, and the terms upon which, the real estate should be sold, and the parties interested as beneficiaries in the estate had the right to the exercise of the discretion by both executors. One could not convey without the other, or enter into any agreement to convey which would be binding upon the other. ( Brennan v. Willson, 71 N.Y. 502; Berger v. Duff, 4 Johns. Ch. 368.) Here it is proved by uncontradicted evidence, and found by the trial court, that Russell did not assent to the clause in the agreement giving the plaintiff the option to purchase, and the plaintiff was informed of that fact, and Russell never thereafter ratified the agreement, but uniformly objected to that clause whenever it was called to his attention. If the property agreed to be sold had been strictly personal, the rule would be otherwise, because one executor, or one trustee, may dispose of personal property to a bona fide purchaser without the consent of the other. This lot was not, for the purpose now in hand, personal estate, within the principles laid down in Bogert v. Hertell (4 Hill, 492) and other cases. There may have been a conversion of this real estate into personalty for many purposes, but not for all purposes. It physically remained real estate, taxable as such, controllable as such, and it could only be conveyed as such. And the rules of law generally applicable to real estate remained applicable to this.
No case was made upon the proofs for damages against Ranney for a failure to convey in pursuance of the agreement executed by him; and it does not appear that any claim upon the trial was made that relief should be awarded to the plaintiff by way of damages.
On the whole, therefore, we are of the opinion that this case was properly disposed of, and the judgment should be affirmed.