Clayton v. Kingston

115 Misc. 631

• Court: New York Supreme Court
• Decided: June 15, 1921
• Status: Published

Opinion

Martin, J.

The plaintiffs, who are legatees under the will of the wife of John Kingston, seek to have a lien impressed upon the realty to the extent of their respective legacies, and to have the real estate sold to satisfy them. The realty was devised to the defendant, John Kingston, absolutely, subject to the payment of these legacies. The power of sale provides that the executors, only one of whom, the husband, qualified, are authorized and empowered to sell the real estate at such times and in such manner as they deem most advantageous. Such power of sale is personal, confidential, and discretionary, and was not conferred for the purpose of conversion. There is consequently no trust to sell the property in order to pay the legacies. It was clearly the intent of the testatrix that they should be paid by her husband, who would then hold the realty absolutely free from charges; or, if not so paid, then to be paid out of the proceeds from the realty when sold. The charges of waste and mismanagement were not proved. Judgment for defendant, dismissing the complaint upon the merits.

Ordered accordingly.