Dunshee v. Goldbacher

56 Barb. 579, 1870 N.Y. App. Div. LEXIS 14

• Court: New York Supreme Court
• Decided: April 4, 1870
• Status: Published

Opinion

By the Court,

Sutherland, J.

Notwithstanding the devise and bequest in words, by the second clause of the will of Samuel Dunshee, to his executors and executrix, of all his estate, real and personal, his real estate on his death vested in his four sons, John, William ¡K., James and Henry W., subject to the gift by the third clause to his wife of one-third of the income of his estate during her widowhood, and which gift as to his real estate was, in substance and effect, a devise of one-third of his real estate to her during her widowhood. The power of sale given to the executors by the fourth clause of the will must be viewed as a power in trust merely.

[New York General Term, April 4, 1870.

It is not only contingent upon the event of the testator surviving his wife, (which he did not,) but its exercise is also limited expressly to six months after- the decease of the testator.

Had the testator survived his wife, his executors having failed to exercise the power of sale within the time limited by the testator, I do not see how they could effectively exercise it after that period. (See Richardson v. Sharpe, 29 Barb. 222.)

On the facts stated, I am of the opinion that the executors of Samuel Dunshee cannot give or convey a good or perfect title to the premises in question.

I think that under the will of John Dunshee, his widow took a life' estate, and his children named in the will a vested remainder in fee in all the real estate of which he died seised, including, of course, the real éstate, or the estate or interest in the real estate, which he took and had as heir at law of his father, Samuel, or under or by his will.

There should be judgment on the facts submitted, according to the foregoing views.

Ingraham, Cardozo and Sutherland, Justices.]