[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 428 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 431 In considering the questions involved in this appeal it will be convenient to examine separately the two clauses which, it is asserted, gave the executor power to sell the lot sought to be recovered. The clause contained in the latter part of the will provides: "I authorize and direct my executors to sell and convey the strip of land heretofore mentioned and described as lying on the Niagara river, and also that piece of land on Sweeney street and on the Tonawanda creek, east of the building known as the shoe-shop, for the purpose of discharging all my debts." By this provision the lots mentioned are not converted into money out and out, but the executors are empowered to convert them for a specific purpose, to wit, the payment of the testator's debts. When a testator authorizes his executors to sell and convert into money all or a part of his realty for a specific purpose, which fails, or is accomplished without a conversion, the power is extinguished and the land cannot be sold by virtue of it or treated as money, but it descends to the heir unless it is devised. (Wood v. Keyes, 8 Paige, 365; McCarty v. Terry, 7 Lans. 236; Jackson v. Jansen, 6 Johns. 73; Sharpsteen v. Tillou, 3 Cow. 651; Bogert v. Hertell, 4 Hill, 492; Hetzel v. Barber, 69 N.Y. 1;Read v. Williams, 125 id. 560; Hill v. Cook, 1 Ves. B. 175; Chitty v.Parker, 2 Ves. 271; Taylor v. Taylor, 3 DeG., M. G. 190; Leigh D. Conv. 93; Lewin on Tr. [8th ed.] 149, 953.) When the executor sold the lot, both he and the purchaser knew that the testator's personal property exceeded by more than twelve hundred dollars the testator's debts and the expenses of administration, which defeated the power to sell under this clause unless, as it is argued, the testator intended that these lots should be sold and the avails applied towards the payment of his debts for the purpose of relieving to that extent the personal estate from the burden imposed by the rule of the common law, that it is primarily liable for the payment of debts, and must be first exhausted unless there is a clear direction that the real estate, or some part of it, shall be first so applied. This question was considered in Heermans v. Robertson (64 N.Y. 332), where it *Page 432 is said: "The order of marshaling assets for the payment of debts is to apply, first, the general personal estate; second, estates specially devised for the payment of debts; third, estates descended; fourth, estates devised, though generally charged with the payment of debts. (2 Williams on Ex. 1526, note 2; Livingston v. Newkirk, 3 J.C. 312; 4 Kent's Commentaries, 420.) In order to effect a change in the order there must be some absolute and positive direction, clearly indicating an intent to relieve the class of assets primarily liable, and to charge some other portion of the estate in exoneration of the funds and property primarily liable. A mere direction to an executor to sell real estate does not make the proceeds necessarily liable as personal assets, but they will be only applicable to the payment of debts when the assets, personal in their character, shall have been exhausted." (Page 344.) Before the personal estate of a testator will be discharged from the burden of paying the debts, it must clearly appear that he intended that it should be, which will not be inferred from the fact that authority is given to sell all or some part of the real estate for the payment of debts, and especially in a case where, as in this, no disposition is made of the personality. (Gray v. Minnethorpe, 3 Ves. 103; Hartley v. Hurle, 5 id. 540;Hancox v. Abbey, 11 id. 179.) Under this clause the executor had no power to sell the lot in question.
It remains to be considered whether the sale can be sustained under the power contained in the earlier part of the will, which provides: "I also desire and authorize my executors to sell and convey all that part of block F on the Niagara river, running back from said river to a continuation of the west line (to the north) of a projected canal as laid down on a map made by Augustus Canfield, on lot or block G, being nearly on a parallel line with the said Niagara river, and it is my desire that the said land shall be sold in a body for commercial purposes."
Powers, as they existed prior to January 1, 1830, were abolished by article third "Of Powers," of title two of chapter one of the second part of the Revised Statutes (§ 73), which *Page 433 article was intended to be a codification of the law under which powers were thereafter to be created, governed and construed. (Cutting v.Cutting, 86 N.Y. 522; Hutton v. Benkard, 92 id. 295, 305.) As to beneficial powers, it is enacted by the ninety-second section that none except those enumerated in the article shall be valid.
"A power is an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon which the owner, granting or reserving such power, might himself lawfully perform." (§ 74.) All powers are divided into two general classes, beneficial powers and powers in trust. "A * * * power is beneficial when no person other than the grantee has, by the terms of its creation, any interest in its execution." (§ 79.) "A * * * power is in trust when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the land according to the power." (§ 94.) These powers are subdivided into general and special powers. "A power is general when it authorizes the alienation in fee * * * of the lands embraced in the power to any alienee whatever." (§ 78.) Special powers are defined in the seventy-eighth section, but it is unnecessary to call attention to the definition, as it is agreed by counsel and is clear that the power claimed to be created is a general one.
To create a valid power, either beneficial or in trust, it is indispensable that the object or objects to be benefited by its execution shall be specified in or be clearly ascertainable from the instrument by which the power is attempted to be created. (Jennings v. Conboy,73 N.Y. 230; 1 Sugden on Powers, 117 [3d Am. ed.] 173; Farewell on Powers, 29, 401; Abb. Law Dict., Objects of a Power; 4 Cruise, R.P. chap. 19, § 32; vol. 2, Green. ed. 294, § 32.) For the creation of a valid power in trust it is essential that its execution be beneficial to some person, or class of persons other than the grantee of the power, who can compel the due execution of the trust, which person or class of persons must be designated in or be clearly *Page 434 ascertainable from the instrument by which the power is created. (1 R.S. 734, § 94; Read v. Williams, 125 N.Y. 560.) As this will discloses no purpose to be accomplished, nor any person or class of persons to be benefited by the alienation of the land under the clause last quoted, a valid power in trust was not created by it.
Does the clause create a beneficial power? When a power is conferred upon an individual (not upon a trustee), and no person other than the grantee of the power has an interest in its execution, it is beneficial; and so, a power is beneficial when it is silent as to the person to be benefited by its execution. (Jennings v. Conboy, 73 N.Y. 230.) Undoubtedly a power may be vested in executors, as such, to be exercised for their own benefit as individuals, which would be a beneficial one; but when a power is conferred upon executors by virtue of their office, and not on them as individuals, there being no other evidence that it was intended to be beneficial to them, the presumption is that it was given for the purpose of being executed in the interest of the estate, and not for their own benefit. In this case the power sought to be conferred by this clause runs to the executors in their respective capacity, and not to them as individuals, and it is clear that the testator did not intend to confer a power on his executors for their personal benefit, but for the purpose of administering his estate, which purpose has failed, as before shown. No such beneficial power as is claimed to exist under this clause is authorised or enumerated in the article relating to powers, and consequently the clause in question does not create a valid beneficial power. (1 R.S. 733, § 92.) No valid beneficial power or valid power in trust being created by this clause, and the purpose for which the power was given in the clause first considered having failed before the land was conveyed, no title was acquired under the conveyance executed by the executors.
After paying the debts and expenses of administration there was in the executor's hands, arising from the personal estate, a surplus of $1,292.92, and $180 received from George H. Bryant *Page 435 for the lot sold to him, which sums, amounting to $1,472.92, were, May 25, 1857, paid over to the widow, who, at that time receipted therefor and also for the $500 due from her on the purchase of the lot in question, which three sums amounted to $1,972.92. In September, 1857, the executor applied to the Surrogate's Court for a final settlement of his accounts and a citation was duly issued and personally served on all the heirs, next of kin and persons interested in the estate, including these plaintiffs, to attend such final settlement. On the 14th of September, 1857, the account as presented was settled, the two sums amounting to $680, arising from the sale of real estate, was treated as personally, and the payment of May 25, 1857, to the widow was ratified and confirmed upon the theory that the testator not having bequeathed his personalty, and not having left descendants, his widow was entitled to the residue of the personalty, unless it exceeded $2,000. Whether any of the persons interested in the estate were present, or were represented on the accounting, does not appear.
It is now insisted in behalf of the defendants that the heirs are estopped by the proceedings in the Surrogate's Court from maintaining this action for the recovery of the land.
A Surrogate's Court has no jurisdiction over realty left by a decedent, or its avails, unless brought within it by a will, or by a statute for the purpose of being dealt with for some special purpose, like the payment of debts in case the personalty is inadequate for that purpose, and therefor there is no judicial estoppel by a court having jurisdiction. None of the elements of an equitable estoppel or of an estoppel in pais have been pointed out by the learned counsel for the respondent, nor have we discovered any. The sale was not induced by the conduct of any of the heirs. The widow, who purchased the lot, never changed her position, nor have her executors, the defendants, changed theirs by reason of any act done or omitted by the heirs. She paid nothing and parted with nothing in exchange for the deed which she took. It is true she agreed to pay $500, but she did not, that sum being charged as paid to her by the executor in his final account. *Page 436 There is nothing in the record showing any expenditure or change made, or steps taken in respect to the property since the final accounting. The defendants are not purchasers of the lot for value, nor are they the representatives of one who purchased for value, relying upon the proceedings of the Surrogate's Court and the acquiescence of the heirs.
The judgment should be reversed and a new trial granted, with costs to abide the event.