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FIRST DEPARTMENT, DECEMBER TERM, 1874.

tion of that period. And the terms made use of in the first clause were judiciously selected to secure that result. He did not devise her the use of his homestead during life, and bequeath absolutely to her the personal property thereon at the period of his decease, subject to the exception afterward declared, but simply the use of both. That term was employed to qualify the interest given her in the personal property, as well as in the homestead itself. It was of such a nature as to render the use of the homestead comfortable and convenient, and was undoubtedly made to accompany it for that reason. Other terms would be required to be added to the clause in order to give her any greater interest than that in the personal property referred to.

It is next claimed that the executors took no title to the testator's real estate, because he directed them to divide and invest the property left by him, for the benefit of his children and grandchildren. But while that was the direction which was given, a construction based upon that circumstance, which would exclude the realty, would be directly in conflict with an express devise of the real estate, made in the same subdivision of the will. Upon that subject the testator declared: "I hereby give, devise and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate, and personal estate, in trust nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts, two of which said parts my executors shall keep invested for the use and benefit of my son Sidney; two they shall keep invested for the benefit of my daughter Augusta È.; one of said parts for each of my grandchildren, Wallace, Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live." This was a valid trust, under the statutes of this State, and was in terms made so extended as to include all the testator's property, not previously disposed of.

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But it is contended that such could not have been the intention of the testator, because the real estate, particularly the homestead devised to his wife for life, could not be divided and invested

* Vernon v. Vernon, 53 N. Y., 351.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

as it was afterward directed his property should be; and that the proceeds to be divided, being denominated "income," did not properly include the profits of real estate. Besides that, the unexpended residue of the $20,000, was directed to be added to the portions of the estate to be invested and divided. And because the remainder of the homestead estate was not included in the same direction, it is claimed that this omission is evidence that it was not the testator's purpose to include it. But neither nor all of these reasons would justify the exclusion of the real estate, in view of the positive direction contained in the will to the contrary. The testator, upon this subject, used clear and comprehensive language, declaring it to be his design, for the purposes of the trust, to devise "all the rest, residue and remainder" of his real, as well as his personal estate to the executors. And that included the remainder of the estate in the homestead, remaining after the life estate created for his wife, as well as the other two pieces of property of that nature which he owned at the time of his decease, and the personal property bequeathed for life with the homestead. These terms were sufficient for that purpose. * And, as long as that was the nature of them, a repetition of the purpose expressed by them was not afterward essential in order to render them effectual. + The construction which has been contended for, would result in excluding the direction concerning the rest, residue and remainder of the real estate entirely from the will. And that it is the duty of the court to avoid, by harmonizing the directions, relied upon as inconsistent with the design of including that species of property, so that they may all be maintained together. And that can very well be done by limiting the directions given to the executors to invest, to the personal estate, which was all that in its nature was susceptible of investment. For that reason the testator probably so intended, though the intention was not clearly expressed in words. It is, however, to be inferred from the fact that both real and personal property was given in trust to the executors, and from the further circumstance that he appears to have designed that his children and grandchildren should, by means of the trust, be secured the entire benefit of all his property, so far as it was not

*Youngs v. Youngs, 45 N. Y., 254.

+ Salisbury v. Morss, 7 Lans., 359, 362, 363.
HUN-VOL. III.
7

FIRST DEPARTMENT, DECEMBER TERM, 1874.

specifically devised for the enjoyment and support of his wife and the payment of certain legacies. The income directed to be so applied is entirely consistent with this conclusion, for the terms used to describe it are broad enough to include the rents and profits of the real estate, as well as the interest derived from the investment of the personal property. It was claimed that the direction to allow the testator's son, Sidney, to have the use of the office and the land connected with it, was opposed to such a construction of the sixth paragraph of the will. But as he was required to pay the executors an annual rent of seventy dollars for such use and occupancy, no such effect can be attributable to it; for its payment enabled them to make precisely such a division of the proceeds or income of the property as they were required to for the purpose of executing the trust previously declared. The effect of the will was to devise and bequeath to the executors, for the purposes of the trust, all the testator's property not required to pay the legacies, subject to the provision made for his wife, which they were to invest, so far as it was capable of investment, and divide and apply the income, in the manner particularly specified, for the benefit of his children and grandchildren during life.

Power was given the executors to sell and dispose of all or any of the testator's real estate whenever they and his wife, who was also nominated and acted as executrix, should unanimously think such sale advantageous to the estate; and they were invested, in that case, with full power and authority to convey it. The plaintiffs, who are the surviving executors, claim that they may now lawfully execute this authority.

While the testator's wife was living, her assent was undoubtedly required to the conveyance of a valid title by means of the power. The right to sell was rendered conditional upon the unanimous conclusion of all, that the sale would be advantageous to the estate. It was a discretionary authority, in the exercise of which all were required to concur. But it was no more than that, for a dissent of either one of the three would prevent it from being used; and the fact that the authority may be of that nature does not restrain the survivors from executing it. The statute upon that subject is general, applying to discretionary and qualified authority to sell, as well as those of a more absolute and unrestricted character.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

The provision made upon the subject is, that, "where a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors;" and it seems to be clearly applicable to the present case.

The same construction, in this respect, has been given to another statute, in principle very much like this provision. That is the statute giving the acting executors full power to act under the will nominating them, where others, jointly selected, decline to accept the trust. In that case, the acting executors may exercise even a discretionary authority, though it may have been jointly conferred upon them with others, also designed to possess and execute it. ‡ And there is no substantial distinction in principle between that provision and the one more especially relating to this case; for one provision confers upon the surviving recipients of a power the same authority which the other does upon acting executors, where others selected to exercise the authority with them decline to accept it. And, under the terms of that provision, no good reason appears for doubting the power of the surviving executors to exercise the authority to sell, provided they are satisfied that a sale of the real estate will be advantageous to those interested in the estate left for them by the testator. Judgment should therefore be directed, adjudging that the widow had but a life estate in the personal property bequeathed with the homestead; that the real estate, including the remainder after the widow's life estate in the homestead, was devised to the executors for the purposes of the trust created by the sixth paragraph of the will; that the same disposition was made of the personal property bequeathed with the homestead, and of the residue of the $20,000 undisposed of by the widow; and that the surviving executors have the power to sell and convey any or all the real property, provided they concur in the conclusion that the sale will be advantageous to the testator's estate; and for the recovery of the taxable costs of both parties, to be paid by the executors out of the shares of the defendants in the funds in their hands.

*3 R. S. (5th ed.), 27, § 132. Taylor v. Morris, 1 Com.,

+3 R. S. (5th ed.), 197, § 66.

341.

FIRST DEPARTMENT, DECEMBER TERM, 1874.

The shares of the grandchildren should not contribute to the expense of the litigation, because they are not made parties to the proceeding.

DAVIS, P. J., and LAWRENCE, J., concurred.

Ordered accordingly.

THE BOARD OF COMMISSIONERS OF PILOTS, APPELLANT, v. PAUL N. SPOFFORD AND OTHERS, EXECUTORS, ETC., RESPONDENTS.

Code, § 385-meaning of word "costs" in — when party entitled to costs. Under the Code, costs are allowed to the prevailing party, either absolutely or conditionally. When given absolutely, the statute fixes the right, and the courts cannot annul the statute. But, when given in the discretion of the court, there are no costs unless the court awards them.

When, upon an appeal, a new trial is ordered, or a judgment is affirmed in part and reversed in part, neither party is entitled to costs without the express adjudication of the court. Silence is a denial; and the addition of the words, "without costs to either party," adds nothing to the legal effect of an omission to award them.

Section 385 of the Code requiring the plaintiff, in the case provided for, to pay "defendant's costs," means only such costs as are legally allowed, either by statute or in the discretion of the court, and is not intended to limit, or in anywise to interfere with, the discretionary power over costs which is conferred on the courts, in any of the various steps or proceedings that may be taken in the progress of the suit.

APPEAL from an order of Special Term, affirming a taxation of costs by the clerk. The appeal is presented upon the following agreed statement of facts:

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The action was brought, March 27, 1865, by the plaintiff against the testator of the above named defendants, for the recovery ninety-six penalties, of $100 each, for the violations of the pilot law. The defendant, before answer, made an offer of judgment, under section 385 of the Code, for $100, the amount of one penalty, and interest, with costs to the time of offer. The offer was refused. Defendant answered, and the cause was tried at the circuit; whereupon the plaintiff recovered for forty-six penalties, $4,600, the amount which it had been stipulated before the trial that the

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