52 N.Y. St. Rep. 613

William Buchanan, Pl'ff, v. Noah Tebbetts, Def't.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Will—Power of sale—Suspension of alienation.

By the will of a testator he gave all his estate to his three sons, who were his executors. The will also gave the executors power, in their discretion, at any time after one year, but not over two years, to sell certain land, and after deducting taxes and assessments, and any sum owing the estate by one M., to pay the balance of proceeds to said M. Held, that there was no suspension of the power of alienation; that the land descended to the heirs subject to the power of sale, and that a conveyance by the ex- . ecutors during the second year passed a good title.

Submission of controversy without action.

Defendant contracted to purchase certain land of plaintiff, but refused to accept the deed tendered, on the ground that the title was not good. The property came to plaintiff from one Walker, to whom it was conveyed by the executors of one Augustus Ivins, in pursuance of a power of sale contained in his will.

Defendant claims that the power of sale was void, as unlawfully suspending the power of alienation, and that under the third clause of the will the title vested in said executors individually, so that the inchoate right of dower of their wives could not be cut off by a deed by them as executors.

J. W. Peckett, Jr. (George R. Button, of counsel), for pl'ff; Noah Tebbetts, def't in person.

Barnard, P. J.

By the will of Augustus Ivins, who died in October, 1885, he bequeathed all the rest and residue of his property to his three children. By the fourth clause of this will the executors were, at any time in their discretion “ after the lapse of one year, but not over two years, from the date of my death,” authorized to sell a parcel of land conveyed by Kalbfleisch & Conselyea to the testator. By this clause the executors were directed to deduct all taxes and assessments then due and the entire sum of money owing to testator by William T. Mills, and to pay the balance to William T. Mills. By the will the property would descend to the three children of testator if this limited power is void. If the power is good it would descend to them subject to the execution of the power. The power of sale was executed after one year, and within the two years after testator’s death. The power of sale is good. There was never for a moment a suspension of the power of alienation. The three children had the title subject to the povrer. The testator provided that the land should be sold for Mills’ benefit and for the benefit of the estate. There were always persons in being who could give a good title. A power of sale after a definite term does not necessarily create an illegal restraint upon alienation. Garvey v. McDevitt, 72 N. Y., 556.

The title which depends on the validitv of this power is good, and the defendant should take the title offered.

Judgment for plaintiff on submitted case.

Dykman and Pratt, JJ., concur.

Buchanan v. Tebbetts
52 N.Y. St. Rep. 613

Case Details

Buchanan v. Tebbetts
Decision Date
May 8, 1893

52 N.Y. St. Rep. 613

New York



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