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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 215 The action is not maintainable as an action for the construction of the will of Abner Mellen. The validity of the power of sale given to the executors, even if any doubt could be entertained in respect to it, is a question for a court of law as distinguished from a court of equity. It is a question primarily of legal and not of equitable cognizance. There is no inherent power vested in courts of equity in the construction of devises, as a distinct and independent branch of jurisdiction, but they exercise this jurisdiction *Page 218 only as incident to their jurisdiction over trusts. (Bower's v.Smith, 10 Paige, 193; Monarque v. Monarque, 80 N.Y. 320;Wager v. Wager, 89 id. 188.)
The validity of devises and limitations in wills, or of a power conferred thereby, depends upon and is determinable by legal rules, and their determination must ordinarily await an occasion when, in a legal action or proceeding, a right under the devise or limitation, or the execution of the power is asserted by one party, or denied by the other. The will in question in this case created legal estates only in the land devised, unaccompanied by any trust. The power of sale given to the executor, while it was in a sense a trust power, did not create any trust in the land devised, and while it might warrant the executor, upon a question arising, to apply to the court for instructions, the mere fact of the existence of the power did not make a case for invoking in behalf of a devisee, or the grantee of a devisee, the equitable jurisdiction of the court in the construction of wills, within the principles established in this state.
The power of the court over actions for the construction of wills has been extended by statute, and they may be brought in many cases in which, before the statute, the court would have declined jurisdiction. The statute now in force is found in the Code of Procedure (§ 1866), which has been considered in two cases in this court. (Horton v. Cantwell, 108 N.Y. 255;Anderson v. Anderson, 112 id. 104.) The plaintiff cannot maintain the action under this statute for the reason that she is neither heir at law or devisee of the testator, and holds her title, not immediately under the will, but as a purchaser from and grantee of her husband. The plaintiff is in the possession of the land under this title, and it would, we think, be both an unreasonable and inconvenient construction of the statute which should enable one whose title comes through a devise to a former owner to institute an action for the construction of a will which formed one of the links in the chain of title. Moreover, the language of the statute is confined to actions to determine the "validity, construction or effect of a *Page 219 testamentary disposition." The question whether the power of sale given to the executor by the will of Abner Mellen is valid, does not affect the "testamentary disposition" made by the testator of his lands. It is collateral to the gift, and whether exercised or not, does not change the substantial interest of the devisees under the will. The statute should be construed liberally in aid of the remedy intended, but it would be unwise to so interpret it as to draw into the Supreme Court every controversy, however trivial, which could be suggested by a doubt as to the construction of some provision of a will not affecting some substantial interest thereunder.
The claim made in behalf of the plaintiff, that the power of sale given to the executor is repugnant to the prior absolute devise to the widow and children of the testator, and creates a cloud upon the title, and that the action is maintainable in this view, is not tenable. If the power is invalid, its invalidity appears on the face of the will, and it is well settled that where the rights of parties depend upon the legal construction of a written instrument, an action to correct the instrument or to declare it invalid, under the jurisdiction of courts of equity to remove clouds upon title, cannot be maintained. In such cases there is no cloud in a legal sense. Unless the lien, charge or incumbrance is apparently legal and valid, there is no ground for invoking this jurisdiction. The court does not entertain such an action to remove a doubt which might be created in the minds of persons dealing with the title, provided the means of forming a correct legal judgment are patent on the face of the instrument or proceeding by which the existence or non-existence of the right in question must be determined. (Bailey v. Briggs,56 N.Y. 407; Townsend v. Mayor, etc., 77 id. 542, and cases cited.)
But there can be no doubt of the validity of the power of sale. There is no repugnancy between a devise in fee and a subsequent power of sale given to the executor for the benefit of the devisees. This is a common incident of testamentary dispositions. The title to the lands vested in the widow and children of Abner Mellen under the devise, and was a fee, *Page 220 subject to the power of sale given to the executor. In case of a sale under the power the title of the devisees in the land would be divested and an interest in the proceeds substituted. (Crittenden v. Fairchild, 41 N.Y. 289.)
The most serious question in the case arises upon the claim that the complaint states that the power of sale in the executor had been extinguished before he advertised to sell the lands under the power, by an election made by the devisees and parties interested in the lands, to hold them, freed from the power of sale. It is a principle now well settled that where by a will money is directed to be laid out in the purchase of land, for designated beneficiaries, or land is directed to be sold and the proceeds distributed, it is competent for the parties beneficially interested, provided they are competent and of full age, and the gift is immediate and not in trust, to elect before the conversion has actually taken place, to take the money in the one case and the land in the other, and when they have so elected and the election has been made known, the power of the trustee for conversion ceases and becomes extinguished, and he cannot thereafter lawfully proceed to execute the power. This doctrine is founded upon the presumption that such a power is given by the testator for the benefit and convenience of the devisees and legatees, and unless made so in terms, was not intended to be imperative so as to prevent the beneficiaries from taking his bounty, except in the precise form in which the property would exist after the conversion. The doctrine referred to has been considered and applied by this court in several cases. (Hetzel v. Barber, 69 N.Y. 1; Prentice v. Janssen, 79 id. 478.) Jarman says (1 Jar. 599), that the expressions or acts declaratory of an intention to make an election, though it is said they may be slight, "must be unequivocal," and in Prentice v. Janssen the rule stated in Leigh and Dalzell on Equitable Conversions, "that a slight expression of intention will be considered sufficient," is quoted with approval.
The devisees of the land in the present case were in a situation to make an election. All the debts and legacies of the *Page 221 testator had been paid, the devisees were of full age and were the only persons interested in the land or its proceeds. If in fact they had elected to take the land as land, free from the power of sale, prior to the advertisement of the land for sale by the executor under the power, I am of opinion that an action would lie in behalf of the parties interested, to enjoin the executor from selling under the power. It is not necessary to consider what would be the right of a purchaser in good faith, without notice, on a sale by the executor in assumed execution of the power, after the former had been terminated by an election. A sale under such circumstances would at least create a cloud on the title, and an action to enjoin the sale would be an available and proper remedy. (See Butler v. Johnson, 111 N.Y. 204.)
But we are of opinion that the complaint is insufficient to sustain this cause of action for the reason that it is neither directly alleged that the plaintiff and the other persons interested and deriving title as original devisees of Abner Mellen, or under them, had elected to take the land in its unconverted state, freed from the power of sale, nor are any facts averred from which an election can be legally inferred. The allegation that the devisees took possession of and occupied and controlled the land devised as owners, and appropriated the rents and profits, is not inconsistent with an outstanding power of sale in the executor. The devisees had the legal title to the land as tenants in common, and as such had the right to the possession and to the rents and profits. They may, nevertheless, have desired that the power of sale should continue in the executor, for convenience in passing the title upon a sale, or for other reasons. The commencement of the partition action by the plaintiff naturally signified her election, and if all the other parties interested had joined in asking a partition, this would, I think, have amounted to an election that the power of sale in the executor should not be exercised. It would show an intention by all the parties interested to sever the tenancy in common and take their respective shares of the land in severalty. But the other parties interested resisted *Page 222 the partition, and an election by one of the parties, without the concurrence of the others, would not defeat the power. A long lapse of time, during which a power of sale remained unexecuted, where there was no obstacle to its execution, might alone, or with other circumstances, affect the presumption of an election. In Kirkman v. Miles (13 Ves. 338), Sir WILLIAM GRANT was of opinion that two years was too short a time to presume an election (see, also, Brown v. Brown, 33 Bea. 399), and Jarman says (vol. 1, p. 600): "But possession for two or three years by tenants in common (without more), has been held insufficient." In the present case less than three years had elapsed between the death of the testator and the advertisement of sale by the executor. The renewal of the lease of some of the property, in March, 1890, by the parties owning the land, for the period of a year, would be a significant and probably a decisive fact showing an election, if the act was inconsistent with the continued existence of the power of sale. Great weight was given by Lord HARDWICKE in Crabtree v. Bramble (3 Atk. 680), to the circumstance that the parties beneficially entitled, under a will, had executed a lease of the premises for a term, upon the point of an election. But in that case the trustee for sale took under the English law title to the estate as trustee, and the lease was in hostility to his right, and the lessors had bound themselves to make good the lease. The act was inconsistent with the continuation of the power of sale, and was significant of an intention on the part of the lessors to take the land and not the proceeds. The lease, in the present case, bound the land, and was made by the legal owners, and was not in hostility to the power of sale. A purchaser under the power would take subject to the lease.
We fail to find any evidence in the facts alleged in the complaint, certainly no "unequivocal" evidence of an election subverting the power of sale, and no allegation that such an election had been made. The concluding allegation in the complaint, that "by reason of the premises" there was an election, etc., simply refers back to the preceding allegations *Page 223 as ground for this conclusion, and they furnish no sufficient evidence thereof.
We think the demurrer was properly sustained, and the judgment should, therefore, be affirmed.
All concur.
Judgment affirmed.