[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 401 This is an action to recover a parcel of real estate in the city of Rochester, of which the defendant was in possession, claiming title. It is undisputed that the plaintiff's father, Bernhard Klem, who died on the twenty-first of January, 1879, leaving a last will and testament, was the owner *Page 402 of this land and the common source of title. The lot in controversy is known as lot number one, as shown upon a map made by the testator in his lifetime, subdividing a tract containing about six and three-quarter acres, known as the homestead lot. The plaintiff claims to be the owner of this lot as devisee under her father's will, and the defendant claims title under a conveyance of the same by the executors of the will.
By the first clause of the will the testator devised this lot to his widow during her natural life, and she died on the eighteenth of September, 1895, and this action was commenced on the seventh of December, 1899. By the fourth clause of the will the lot was devised to the plaintiff from and after the death of her mother, to have and to hold the same in fee simple forever. Reading these two provisions of the will together, the plaintiff had a vested remainder under her father's will in the land in controversy, and if there were no other provisions of the will that affected the title the plaintiff would undoubtedly be vested with the title to the property. It was a holographic will, containing twenty-one separate clauses or provisions. The twentieth clause is as follows: "I hereby authorize, empower and direct my said executors to sell and convey the real estate which I have devised to my said wife for her use and benefit during her life, as mentioned in clause number one, however, upon the condition that my said wife gives her consent to such sales; and if any sales of real estate should be made as aforesaid, then I direct and authorize my executors to divide the avails of such sale or sales among all my children equally, share for share alike. My said wife is to receive an equal share with one of my children." Reading these three provisions together, the question is, whether the testator conferred upon his executors the power to sell and dispose of this lot. In other words, whether the devise of the remainder to the plaintiff is qualified and affected by the power of the executors to sell with the consent of the widow. They did sell the land, and the widow joined in the deed, thus expressing her consent in an effective manner. *Page 403
The testator, it seems, was twice married and he left surviving him seventeen children, ten children of the first wife and seven of the second; and it is apparent from the whole scheme of the will that he intended, after providing for the widow, to divide his property equally among each of the two sets of children, without favoring one more than another. It seems that the plaintiff was the youngest child, and that she and two or three of the other children were minors at the time of the death of the testator. The power of sale to the executors is mandatory, but it could not be put into operation without the consent of the widow, and, hence, she was the real party to determine whether there should be a sale or not. The homestead, so called, or at least that part of it on one side of a certain street or avenue, had been subdivided into seven separate lots designated and numbered on the map referred to. It was suburban property, but the city was rapidly growing and extending in the locality, and various improvements such as the paving and grading of streets, the construction of sewers, and, perhaps, some other municipal work, rendered it quite probable that these lots would be subjected to large local assessments; and it is reasonable to assume from the various provisions of the will that this was foreseen by the testator at the time that he executed the will.
The learned counsel for the plaintiff contends that, although the power of sale given to the executors was broad and comprehensive in its terms, yet it could not apply to the lot in question, which had been devised to the plaintiff after the death of her mother by previous provisions of the will, and he invokes the doctrine which is well settled that the clear devise to the plaintiff, expressed in the fourth clause of the will, cannot be cut down or affected by the power contained in the twentieth clause. There is no doubt that that is the general rule, but the meaning of every will must after all be determined by its own peculiar provisions, and in this case we find the testator in various clauses of his will devising to his children in remainder designated lots or parcels of land which were included in the general devise to his widow for life. *Page 404 And then follows near the end of the will the general power, which in terms authorizes the executors, at the widow's election, to convert this same land into money by a sale. He doubtless intended that these minor children should have the several parcels of land devised to them by the will, unless the another, who was a comparatively young woman, should consider it to be for the best interests of these children to sell the lots and convert them into money. We think that the will, when fairly construed with reference to the situation of the property at the time it was made and the age of the children, conferred authority upon the widow to invoke the mandatory authority to the executors to sell. The rule invoked by the learned counsel for the plaintiff, that the devise of the estate in remainder to the plaintiff, contained in the fourth clause, cannot be cut down or affected by the power of sale in the twentieth clause, is one of construction. Of course it is possible to do it, and all that the courts require in such a case is that the testator should have expressed his intention in clear language, and the language conferring the power in this case is clear and comprehensive. When all the provisions of the will are considered, the most that can be said is that the question is perhaps not entirely free from difficulty, but since every will must be construed with reference to its own provisions and the peculiar facts and circumstances existing at the time it was made, it is reasonable to conclude that the power applied to the lot in question.
But however that may be, we think that there is another feature of the case which disposes of the plaintiff's claim and is sufficient to control the decision. At the close of all the testimony both parties asked the trial court to order a verdict, and the court denied the plaintiff's motion in that respect and directed a verdict for the defendant. If there were any questions of fact in the case, or any necessary inferences to be drawn from facts, it was within the province of the trial judge to do it, and, hence, all these questions are settled by the action of the court under the circumstances in directing a verdict. It appears that the plaintiff was born on the seventh *Page 405 day of July, 1870, and arrived at the age of twenty-one years on the seventh day of July, 1891. It also appears that on the seventh day of May, 1884, the executors and the widow united in a deed to the defendant's father of the seven lots, already referred to on the map of the homestead property, for the consideration expressed in the deed of $13,160. About three years thereafter the executors having applied to the surrogate of the county to render their account and for their discharge, the children and widow were cited, including the plaintiff, and a special guardian was appointed for her and the other children, who were minors. This conveyance included the lot in question. The testator died possessed of a considerable estate, both real and personal, amounting in all to about $150,000. The executors rendered a full account of the proceeds of all the personal property and of all the real estate that had been converted into money, and the surrogate proceeded to hear the parties and make distribution of the assets in the hands of the executors. The plaintiff was a party to this proceeding, and one of the things which the surrogate necessarily decided was the question whether the thirteen thousand dollars, which the executors received from the homestead lots, were assets in the hands of the executors for distribution to the legatees and devisees under the will. He held that they were, since he directed they be distributed under the terms of the will to the parties entitled thereto, including the plaintiff. But as some of the children were still minors, the surrogate, after determining the respective rights and interests of the legatees and devisees under the will, directed that the fund be invested by the county treasurer. On the eighth day of July, 1891, the day after the plaintiff became of full age, she applied by petition to the surrogate for an order directing the payment to her of the distributive share of the estate given to her by the decree, and upon her application the surrogate ordered distribution and payment to her of her share, amounting with accumulated interest to $10,780.00, and thus the plaintiff received the proceeds of the sale of the lot in controversy. There is no claim that there *Page 406 was any mistake on the part of the plaintiff in receiving and retaining this money, or that she was ignorant of the situation of the property disposed of by her father's will. The defendant, or his predecessor in title, had erected buildings on this land at an expense of thirty thousand dollars. The plaintiff not only knew this fact, but looked on for nine years subsequently while the defendant, or those from whom he derived title, were in the possession of the property, claiming title, paying taxes and making extensive improvements. Under these circumstances, we think it must be held that the plaintiff ratified the sale even if it was in any essential particular defective. And it may also be said that the proceedings and decree before the surrogate upon the accounting, the subsequent application of the plaintiff for her distributive share of the estate under the will and her apparent acquiescence in the possession and title of the grantee under the executors' deed, estop her from maintaining this action. The plaintiff was represented by a special guardian in the accounting proceedings before the surrogate, and that court necessarily had to decide whether the fund of thirteen thousand dollars, the proceeds of the sale of the land, were assets in the hands of the executors or not, and the power to construe the will in such a case is recognized as incidental to the power to direct distribution. Hence the authority of the executors to convert the land in question into money under the power contained in the will was one of the questions determined by the probate court in the proceedings for an accounting. If the decree directing distribution was not under these circumstances in itself an estoppel, the receipt and retention by the plaintiff of the fruits of the judgment, with knowledge of all the facts, it is safe to say, was. Therefore, in any view that may be taken of the case, the decision of the court below was correct, and so the judgment must be affirmed, with costs.
GRAY, LANDON and WERNER, JJ. (HAIGHT and CULLEN, JJ., on last ground stated in opinion), concur; PARKER, Ch. J., absent.
Judgment affirmed. *Page 407