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Hess v. Hess

Supreme Court of New York, Appellate Division

June 11, 1909


Appeal from Special Term, New York County.

Action by Maria Hess, individually and as sole acting executrix of the last will and testament of George Hess, deceased, against George Hess and others. From part of a judgment construing the will, and finding that the executrix had not power to sell real estate, plaintiff, Maria Hess, and defendants George Kunigunda and Frederick, Kate, and Mary Hess appeal. Reversed, and new trial ordered.

[117 N.Y.S. 556] Edward Kaufmann (James P. Niemann, on the brief), for appellants.

Henry J. Goldsmith, for respondents.



The action is brought for the construction of the last will and testament of George Hess, deceased, which was duly admitted to probate by the Surrogate's Court of the county of New York on the 27th day of January, 1880. The question presented by the appeal is whether the will conferred upon the executrix and the executors authority to sell the real property left by the decedent prior to the period of distribution and expiration of the trust prescribed in the will. It appears that the estate has all been administered with the exception of a parcel of land known as Nos. 5 and 7 Attorney street, borough of Manhattan, New York, upon which stand two tenement buildings. These buildings are old and dilapidated, and the net income therefrom is only $1,500 per annum. They are in need of extensive repairs, so much so that the tenement house department of the city, pursuant to the authority vested in it by law, has ordered that repairs be made upon the premises which will cost more than $3,000. The executrix and executors are unable to comply with the order of the tenement house department for lack of funds, and if they be not permitted to sell the premises it is probable either that repairs will be made and payment enforced against the property or the trustees will be obliged to suffer the premises to stand vacant. A sale, therefore, would be advantageous to all parties in interest, both cestuis que trust and remaindermen. Some of the remaindermen, however, are infants.

The testator, in the first dispositive clause of his will, after directing the payment of his debts and funeral expenses, gives, devises, and bequeaths all of his property, including the wholesale furniture business which he was conducting, to his executrix and executors, " in [117 N.Y.S. 557] trust, nevertheless, to hold, manage, and conduct the same and accumulate the rents, issues, profits, and income thereof, for the uses and purposes hereinafter mentioned, until either the remarriage or death of my said wife, but not in any wise to dispose of the same, nor of any part thereof, until the happening of either of said events, except as hereinafter provided." By clause " Second" of the will he directed the executrix and executors to pay and discharge all taxes, assessments, interest, insurance, incumbrances, claims, and demands upon or against his estate, and then to divide the net rents, issues, income, and profit " at the close of each and every year, until either the remarriage or the death of my said wife, equally among my said wife and my children, share and share alike." In clause " Third" of the will he directs the division of his estate equally among his children named in the will, share and share alike, " upon either the remarriage or death" of his wife, and he directed that in case any child should die without leaving lawful issue before the period for division the share intended for such deceased child should go to the others, and in the event of such death of a child leaving lawful issue it was provided that the share of the deceased parent should go to the surviving children. By the " Fourth" clause he bequeathed certain insurance policies to his wife, and provided that the devises and bequests to her should be in lieu of dower. In the " Fifth" clause he expressed the wish and desire that his furniture business be continued by his sons. By the " Sixth" clause he nominated and appointed his wife and his son George and his friends, Charles Derleth and Jacob Gregorius, his executrix and executors and trustees under his will and guardians of his minor children until they should arrive at the age of 21 years, and further therein provided as follows:

" I give and grant unto my said executrix and executors all necessary and proper powers to pay and discharge all incumbrances, claims and demands whatever upon or against my said estate, raise money thereon, make, execute, and deliver leases, bonds and mortgages, powers of attorney, deeds and conveyances in the law, effectual to carry out the uses, provisions, intents and purposes of this my last will and testament as fully as I myself could, and as in their best judgment they may deem in and for the best interests and benefits of my said estate, and to sell at either public or private sale."

We are of opinion that the testator by his will gave a power of sale to the executrix and executors, which it is competent for them to exercise in the circumstances disclosed by the record. It is, we think, unnecessary to decide whether the prohibition against disposition of property contained in clause " First" of the will was intended to prohibit a sale of the property, or only a distribution thereof between the parties in interest, or of the income thereof; for, assuming, without deciding, that it relates to a sale by the executrix and executors, still I think that a sale for the purpose now intended would come within the exception expressly made by the clause " except as hereinafter provided." It may be that the general provisions of clause " Sixth," conferring a power of sale upon the executrix and executors, would be deemed modified and restricted by the prohibition contained in clause " First" of the will; but by clause " Second" of the will the testator expressly directed the payment of all taxes, assessments, interest, insurance, [117 N.Y.S. 558] incumbrances, and " claims and demands whatever upon or against" his estate. This authority is broad enough to embrace the expenditure rendered necessary by the order of the tenement house department. It therefore falls within the exception contained in clause " First" of the will, and the prohibition against disposing of the property, if applicable at all to a sale by the executrix and executors, does not prohibit them from disposing of the property for the purpose of meeting such a charge. The testator clearly intended that the executrix and executors should have authority to sell the property, should that become necessary, for the purpose of meeting taxes or other charges against the property. That authority should not receive a narrow construction. It should not be held that the authority does not exist until a legal charge exists against the property. If it appears imminent, as it does here, that a legal charge will be made against the property, that is sufficient; for it is manifestly more in the interest of the beneficiaries of the testator to have the power of sale exercised before work is done upon the property by the local authorities, which will become a legal charge and result in the reduction of the income, so that it necessarily will be insufficient to pay taxes and assessments and other regular charges arising thereon. I am of opinion, therefore, that the executrix and executors were authorized by the will to sell the premises in question. The appeals are stated to be from only part of the judgment, but the parts appealed from leave nothing of substance, and a new trial should be had, to the end that a finding be made with respect to the order of the tenement house department, which, although the fact is shown by undisputed testimony, it is not found in the decisions.

It follows that the judgment should be reversed, and a new trial ordered, but, as costs are not demanded, without costs.

INGRAHAM and SCOTT, JJ., concur.

PATTERSON, P. J. (dissenting).

I am not able to concur in the reversal of this judgment. On an examination of the whole record, it seems to me that the proofs are insufficient to authorize the court to grant the relief prayed for by the plaintiff. The action, although in form one for the construction of the will of George Hess, is in reality one to authorize the carrying out of a contract of sale of premises mentioned in the complaint, which contract was made between the plaintiff, individually and as executrix and trustee of the will of George Hess, as vendor, and one Louis Roossin, as vendee. That contract of sale was entered into on the 26th day of February, 1907, and seems to have been executed nearly two years before this action was begun, according to the date of the summons. It provides for the sale by the party of the first part, for $55,000, of the property described in the complaint-$500 to be paid on the execution of the agreement, which sum seems to have been paid; $10,000 by taking the premises subject to a mortgage then a lien thereon; the sum of $35,000 to be secured by a purchase-money mortgage for that amount; and the balance of [117 N.Y.S. 559] $9,500 to be paid in cash or by certified check at the time and place of the delivery of the deed. The contract then proceeds to state:

" It being understood and agreed that this contract is subject to the approval of the court upon an application which the party hereto of the first part is to make for leave to sell the premises hereinbefore described, it being understood and agreed that, in the event of the court refusing to approve of the sale, then and in such case the sum of five hundred dollars hereon paid shall be returned by the party ...

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