The question presented by this appeal is, whether the executors of the will of David Sampson had authority, under the power of sale therein given, to convey the land in question to the plaintiff. The will does not in express terms charge it with the payment either of debts, annuities or legacies given thereby, nor do I find anything therein from which an intention to make such charge can be inferred or properly implied. After a general direction to pay debts and funeral expenses, and the bequests of the annuities to his brother and sister, and certain general legacies, and a provision for a wedding or marriage outfit for two unmarried daughters, he, by the eighth clause, devises his share and interest in certain designated real estate, and then, by the next clause, makes a devise in the following terms: "All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath unto my children living at my decease, and the issue of such as may then be dead in representation of its deceased parent, equally share and share alike forever." This is followed by a distinct and separate clause, appointing three executors, and giving authority and power to them, or such of them as shall qualify, the survivors and survivor of them, to sell all or any part of his real estate at any time in their *Page 534 or his discretion at public or private sale, and to execute valid deeds of conveyance for the same to the purchasers thereof. There is no special designation of the fund or property from which the debts and said annuities and legacies and provisions are to be paid and satisfied. The personal estate is, therefore, the primary fund applicable thereto, and the devise of the said residuary estate being in general terms, without any declaration or statement that the real estate is given after or subject to the payment thereof or of any part thereof, there is no ground for the inference that the testator intended to appropriate it to such purpose. It follows that such payment and satisfaction could only be made out of the personal estate, and the testator, in giving them the power to make sale of the real estate, cannot have intended its exercise for such object. It then remains to be considered whether the power has any validity whatever. Being an authority to make a sale and conveyance of land it is for a lawful purpose, and as it authorizes the alienation in fee by means of a conveyance to any alienee whatever, it is a general power. (1 Rev. Stat., 732, §§ 73, 74, 77.)
The absolute power of disposition is given to the executors; and if no other person has any interest in its execution, and it be construed as unaccompanied by any trust, it is a beneficial power in them and they take an absolute fee. (§§ 79, 82 and 83.)
The question then arises, whether any other person has such an interest, or whether it is subject to any trust. It relates to real estate previously devised and disposed of by the eighth and ninth clauses of the will, and it must be construed in connection therewith; and the testator, in creating the power, with the knowledge that it could only apply to such real estate, cannot be understood as intending thereby to revoke the previous devises and dispositions thereof, and thus deprive the devisees of all interest therein, and of all benefit and advantage therefrom. They may consistently stand together, and both can have full force and effect. It appears by the case, that the testator left him surviving eight *Page 535 children, three of whom were infants under the age of twenty-one years. The residuary real estate was, by the ninth clause of the will, above particularly set forth, devised to all of those children. The lot in question is a part, if not the whole of that estate. It is situated on the northerly side of Fourteenth street, in the city of New York, and is twenty-five feet front and rear, and 126 feet in depth. It was sold by the executors to the plaintiff in December, 1867, about two years and eight months after the date of the will, for $25,000. The testator, aware of the infancy of some of his children, and that such disability as to some of them might continue for some time after his death, and that the devisees would not be able to enjoy their shares in severalty without a sale thereof, probably acted with reference to those facts and circumstances, in giving discretionary power to the executors to sell the premises, if they should deem such sale beneficial to the interests of his children, and especially of those under age. The exercise of that power would secure a division of the avails among the parties in interest, without the delay and expense of an action in partition, or other judicial proceedings, and in my opinion, the power given by the will was intended to effect that object. The avails of the land, instead of the land itself, would in that case pass, under the residuary clause, to the children, and could at once be divided so as to be enjoyed by them in severalty, and they necessarily would have an interest in its execution. This would render it a general power in trust, which is created "when any person, or class of persons, other than the grantee of the power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands according to the power." (1 Rev. St., p. 734, § 94.)
This construction harmonizes and gives full effect to the different provisions of the will. The power, instead of being "repugnant to the previous devise to the children," as was claimed by CLERKE, P.J., in the dissenting opinion in this case, on the authority of Quin v. Skinner (49 Barbour, p. *Page 536 128), (in which decision I did not concur. See note in 50 Barb., Sup. Cr. Rep., p. 4), was consistent therewith. The devise was subject to the power, and until it was exercised, the title to the land itself remained vested in the children, and after its exercise, they took it in its substituted form. It was, nevertheless, to all intents and purposes, substantially the same property.
These views lead us to the conclusion, that the executors had authority to sell and convey the premises to the plaintiff; and, as the only objection raised to her title is consequently removed, the judgment of the General Term, reversing that of the Special Term and ordering judgment for the plaintiff, was right, and must be affirmed with costs.