The Surrogate.
The testator made the following devise and bequest: “ I hereby give, devise, and bequeath, to my dearly beloved wife, Sally Ann, my house and lot 115 Elizabeth Street, in the city of Hew York, with all my household furniture, to her during her widowhood, until my youngest son shall have arrived at full legal age, when I hereby direct the same to be sold by my executors, at private sale, or at public auction, in their discretion; and after paying from the proceeds of said sale the sum of five hundred dollars to my said wife, Sally Ann, provided she be my widow, sole and unmarried,—and which sum of five hundred dollars I hereby give to her from such sale, upon my said youngest son arriving at full age, and she my said wife remaining my widow; and after paying the sum of one hundred and fifty dollars from the proceeds of such sale to my daughter, Harriet, and which I hereby give to her; and after paying the sum of one hundred and fifty dollars from the proceeds of such sale, to my daughter, Zillah, and which I hereby give to her; I then hereby will and direct, that all the rest, residue and remainder, the proceeds of such sale be equally divided among my seven sons, &c., share and share alike, and which I hereby give, devise and bequeath, to them accordingly.” After sundry legacies to his wife and children, he then concludes the will thus, “ And, in the last place, I hereby give, devise, and bequeath, all the rest, residue, and remainder, of my [113] estate, not herein and hereby devised, to my said wife, Sally Ann, to her heirs, executors, administrators, and assigns, forever, hereby declaring that the aforesaid devises to my said wife are in lieu and instead of all dower,” &c. His wife was nominated his executrix, and his son William executor.
The testator died in May, 1847, and his widow in November, 1848, leaving three of their surviving children minors, and who are still under age. The assignee of three of the parties entitled to legacies out of the proceeds of the house 115 Elizabeth street, has cited the surviving executor to account, on the ground that on the death of the ■widow the time arrived when the premises should be sold and the proceeds divided, according to the terms of the will. He also insists that the executor should account for the rents and profits from November, 1848, to the present period.
There is no devise of the land, or of the rents, to the executor; and the direction to sell, though positive and absolute, is conditional as to time, and is a mere power in trust, which does not break the descent. (2 R. S. 3d ed., p. 14, § 56; Sharpsteen vs. Tillou, 3 Cowen, 651; Jackson vs. Schauber, 7 Cowen, 187; Jackson vs. Winne, 7 Wendell, 47.) Laying the power aside for a moment, the will contains an express devise to the wife during her widowhood, until the youngest son attain 21, and then there is no other disposition of the property, apart from the power, except the general residuary devise to the widow. If real estate be specifically devised, and the devise does not take effect from the incompetency of the devisee to take, or from a lapse by the death of the devisee in the testator’s life-time, or from a partial revocation of the will, the property is excepted from the effect of the residuary clause, and descends to the heir at law. (James vs. James, 4 Paige, 115; Van Kleeck vs. Dutch Church, 6 Paige, 600.) But independent of the power, there is no other devise in the present will, except to the wife. There is no specified gift, or [114] charge, which has failed, so that the heir could claim the benefit of the intended exception from the residuary clause, and of its failure as an invalid or ineffectual devise. But whether the devise to the widow during her widowhood, until the youngest son should attain 21, amounted to a term during his minority y or whether the widow’s interest ceased under this provision on her death (Carter vs. Church, 1 Ch. Ca., 113; Levet vs. Needham, 2 Vern., 138; Manfield vs. Dugard, 1 Eq. Ca. Ab., 195,fol. 4); or, on the latter supposition, whether the estate q>assed to the heirs, or to the widow under the residuary devise, it is not now necessary for me to consider; for, the legatees of the proceeds of the real estate have no right to their bequests until the power can be executed, and it makes no difference to them who has the property while the power is in a state of suspense. The only question, therefore, is, whether the time has arrived for the execution of the power. This, like all questions arising on the construction of wills, is to be determined by the intention of the testator; and the intention depends upon the language of the particular provision in question, and a comparison of this with other clauses of the will, tending to illustrate and elucidate the general scope and object of the instrument.
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The Surrogate.
The testator made the following devise and bequest: “ I hereby give, devise, and bequeath, to my dearly beloved wife, Sally Ann, my house and lot 115 Elizabeth Street, in the city of Hew York, with all my household furniture, to her during her widowhood, until my youngest son shall have arrived at full legal age, when I hereby direct the same to be sold by my executors, at private sale, or at public auction, in their discretion; and after paying from the proceeds of said sale the sum of five hundred dollars to my said wife, Sally Ann, provided she be my widow, sole and unmarried,—and which sum of five hundred dollars I hereby give to her from such sale, upon my said youngest son arriving at full age, and she my said wife remaining my widow; and after paying the sum of one hundred and fifty dollars from the proceeds of such sale to my daughter, Harriet, and which I hereby give to her; and after paying the sum of one hundred and fifty dollars from the proceeds of such sale, to my daughter, Zillah, and which I hereby give to her; I then hereby will and direct, that all the rest, residue and remainder, the proceeds of such sale be equally divided among my seven sons, &c., share and share alike, and which I hereby give, devise and bequeath, to them accordingly.” After sundry legacies to his wife and children, he then concludes the will thus, “ And, in the last place, I hereby give, devise, and bequeath, all the rest, residue, and remainder, of my [113] estate, not herein and hereby devised, to my said wife, Sally Ann, to her heirs, executors, administrators, and assigns, forever, hereby declaring that the aforesaid devises to my said wife are in lieu and instead of all dower,” &c. His wife was nominated his executrix, and his son William executor.
The testator died in May, 1847, and his widow in November, 1848, leaving three of their surviving children minors, and who are still under age. The assignee of three of the parties entitled to legacies out of the proceeds of the house 115 Elizabeth street, has cited the surviving executor to account, on the ground that on the death of the ■widow the time arrived when the premises should be sold and the proceeds divided, according to the terms of the will. He also insists that the executor should account for the rents and profits from November, 1848, to the present period.
There is no devise of the land, or of the rents, to the executor; and the direction to sell, though positive and absolute, is conditional as to time, and is a mere power in trust, which does not break the descent. (2 R. S. 3d ed., p. 14, § 56; Sharpsteen vs. Tillou, 3 Cowen, 651; Jackson vs. Schauber, 7 Cowen, 187; Jackson vs. Winne, 7 Wendell, 47.) Laying the power aside for a moment, the will contains an express devise to the wife during her widowhood, until the youngest son attain 21, and then there is no other disposition of the property, apart from the power, except the general residuary devise to the widow. If real estate be specifically devised, and the devise does not take effect from the incompetency of the devisee to take, or from a lapse by the death of the devisee in the testator’s life-time, or from a partial revocation of the will, the property is excepted from the effect of the residuary clause, and descends to the heir at law. (James vs. James, 4 Paige, 115; Van Kleeck vs. Dutch Church, 6 Paige, 600.) But independent of the power, there is no other devise in the present will, except to the wife. There is no specified gift, or [114] charge, which has failed, so that the heir could claim the benefit of the intended exception from the residuary clause, and of its failure as an invalid or ineffectual devise. But whether the devise to the widow during her widowhood, until the youngest son should attain 21, amounted to a term during his minority y or whether the widow’s interest ceased under this provision on her death (Carter vs. Church, 1 Ch. Ca., 113; Levet vs. Needham, 2 Vern., 138; Manfield vs. Dugard, 1 Eq. Ca. Ab., 195,fol. 4); or, on the latter supposition, whether the estate q>assed to the heirs, or to the widow under the residuary devise, it is not now necessary for me to consider; for, the legatees of the proceeds of the real estate have no right to their bequests until the power can be executed, and it makes no difference to them who has the property while the power is in a state of suspense. The only question, therefore, is, whether the time has arrived for the execution of the power. This, like all questions arising on the construction of wills, is to be determined by the intention of the testator; and the intention depends upon the language of the particular provision in question, and a comparison of this with other clauses of the will, tending to illustrate and elucidate the general scope and object of the instrument.
The testator left his wife with three minor children; and in suspending the sale of the real estate till the youngest attained age, his general obj ect was, probably, to provide for the minor children, which he sought to accomplish through the medium of their mother, to whom he gave the property during her widowhood and until the power could be exercised, and whom he also made residuary devisee. He does not, in terms, provide for the occurrence of the death of the mother dining the minority of the children; but if she took the estate under the will, she could care for the interests of the minors; or if it passed to the heirs at law, the minors would still be protected. There might also be prudential reasons for withholding the power of sale until all the children were of full age, and were legally compe[115] tent to look after their own affairs; for so long as the property remained in lands, the rights of the infants Were secured. I see no reason, therefore, for giving any other interpretation to the clause vesting the power of sale in the executor, than may fairly be drawn from the very language used. There must be very clear evidence of a contrary intention, drawn from other parts of the will, to overrule express and definite words. The house is devised to the wife “ during her widowhood, until my youngest son arrive at fall legal age, when I hereby direct the same to be sold.” To hold that the word “when” refers to the phrase “ durring her widowhood,” instead of the immediate antecedent, “ until my youngest son shall home arrived at full legal agef would be a palpable and violent transgression of the ordinary rules of language. If “ when ” is to be referred to “ dw'wig,” then the power could have been executed any time “ during ” his wife’s widowhood, and that, certainly, was never intended. “ When” is the proper correlative of “ until,” and fixes the event on which the power arises. It is true, the testator seems to have supposed his widow would be alive when that event would happen; and in that he is disappointed; but he has not provided for such a contingency so as to affect the power, and it cannot now be done, though it were a clear omission, which I am not satisfied that it was. What would be the effect of the death of the minors before attaining full age, it will be time enough to consider when that occiu-rence takes place. All that I am now properly required to decide is, whether the time specified for the execution of the power has arrived, and I am clear that it has not. There is a direction for an out and out conversion, but it is not immediate; and I am not aware of any principle or authority giving countenance to the idea that it can be accelerated, so long as the condition on which it hinges is still future, and capable of literal consummation. (Sugden on Powers, vol. 1, pp. 334-339 ; vol. 2, pp.. 473-478; 25 Wend., 224). The executors at present have; nothing to do with the property or its rents, and are not [116] accountable for that over which they have no control. The applicant, therefore, entirely fails in his case, and the petition must be dismissed. Under -the circumstances, I shall not award costs against him. The costs of the executors will be paid out of the estate.