Dunshee v. Goldbacher

8 Abb. Pr. 439

Opinion

By the Court.

*—Sutherland, J.

Notwithstandzing 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 this 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.

It is not only contingent upon the event of the testator surviving his wife (which he did not), but its exercise is also limited 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. Sharp, 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 seized, including, of course, the real estate, 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.

Present, Ingraham, P. J., and Cardozo and Sutherland, JJ.