Niagara County NyArchives Court.....Sweeny, James Vs. Phebe Warren 1889
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Source: Reports Of Cases - New York
Written: 1889

Fifth Department, March Term, 1889.


JAMES SWEENY and Others, Plaintiffs, v. PHEBE J. WARREN and Others, Defendants.

Powers of sale in a will — when not inconsistent with its other provisions.

The will of John Sweeny contained the following clause: "I also desire and 
authorize my executors to sell and convey all that part of block F on the 
Niagara river, * * * and it is my desire that the said land be sold in a body 
for commercial purposes."

After making a devise of the remaining part of block F to certain persons, and 
other gifts, the will, in its concluding clause, was as follows: "And 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 lying on Sweeny street, and on the Tonawanda creek, east of the 
building known as the shoe-shop, for the purpose of discharging all my debts."

Held, that the direction or authorization made by the testator to the executors 
to convey the property for commercial purposes was not inconsistent or in any 
respect irreconcilable with the later provisions of the will.

That the intention of the testator was that the executors might sell these 
premises, recommending them to look towards commercial uses for a successful 
market therefor, and that if they should not turn out to be available for such 
purposes, then to sell them for the payment of debts, if necessary. 

That a sale made by the executors to the widow of the testator, who knew that 
the personal estate of the testator was sufficient to pay all its debts, by a 
deed which contained no limitations as to the use of the property for commercial 
purposes, was valid.

Application for judgment upon a verdict directed for the defendants at the 
Niagara Circuit, September, 1888, subject to the opinion of the court at General 
Term.

Sherman S. Rogers, for the plaintiffs.

E. C. Sprague, for the defendants.

Macomber, J.:

This action is ejectment to recover the possession of a part of block F in 
Tonawanda, Niagara county. The question in it arises under the will of John 
Sweeny, the material portions of which, so far as they relate to this action, 
are as follows: "I also desire and authorize my executors to sell and convey all 
of 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 Niagara river, and it is my desire that the said lands 
shall be sold in a body for commercial purposes."

After making a devise of the remaining part of block F to certain persons, and 
other gifts, the will, in its concluding clause, is as follows: "And 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 Sweeny street, and on the Tonawanda creek, east of the building known as 
the shoe-shop, for the purpose of discharging all my debts."

The defendants claim title to the land in question under a deed executed by 
Warren Bryant, as surviving executor of the last will and testament of John 
Sweeny, while the plaintiff claims title as heirs-at-law, or the grantees of the 
heirs-at-law, of John Sweeny. There was no direction for the application of the 
personal property to the payment of debts, and no other disposition made of it 
by the will. But such personalty was abundantly sufficient to pay all the 
indebtedness which the testator owed, and was actually applied to that purpose. 
It is now contended by the counsel for the plaintiffs that the last clause of 
the will, above mentioned, limited the right to sell this land for the payment 
of debts only, and should prevail over the previous portions of the will; and 
that, inasmuch as the widow of the testator was the purchaser from Bryant, the 
surviving executor, having knowledge of the condition of the estate, she is not, 
nor are her grantees or heirs-at-law, in position to claim any equities other 
than those which may attach by the terms of the will themselves.

The question before us is one of testamentary intention. The true construction 
of this instrument does not, in our judgment, lead to the inference or 
conclusion that there is disclosed in it an irreconcilable conflict of purpose 
in the mind of the testator. The direction or authorization made by the testator 
to the executors to convey the property for commercial purposes is not 
inconsistent in any respect or irreconcilable with the later provisions of the 
will. It is only when the subsequent provisions are not reconcilable, and where 
repugnancy between the several provisions distinctly appears, that the rule 
giving effect only to the latter provisions prevails.

The true rule is stated in the case of Roseboom v. Roseboom, (81 N. Y., 356), 
where the court says: "We thus follow the rule which requires a will to be so 
construed as to avoid, if possible, all repugnancy and give effect to all its 
language. We have no occasion to depart from it; the two clauses are not 
irreconcilable, and there is no occasion, therefore, to reject one in order to 
uphold the other — a desperate remedy and to be resorted to only in case of 
necessity — so that one rather than both provisions should fail." (See, also, 
Clarke v. Leupp, 88 N. Y., 228; Van Vechten v. Keator, 63 id., 52; Van Nostrand 
v. Moore, 52 id., 12.)

Reading the several provisions of the will together, the plain construction of 
them is that the testator desired to, and did, actually give his executors power 
to sell the portion of land in question absolutely. The expression, in the 
clause quoted, that it should be conveyed for commercial purposes, is not a 
limitation upon the power of the executors to convey, nor a limitation upon the 
use to which the land should subsequently be put. It constitutes no more than a 
mere expression on the part of the testator that he believed the strip of land 
to be peculiarly adapted to commercial purposes,

which was pre-eminently true; and this was undoubtedly a prevailing reason in 
his mind which induced him to give the power to his executors to convey it.

The subsequent clause giving the executors power to convey for the purposes of 
paying debts is clearly reconcilable with the foregoing views, for the moneys 
received upon the sale, if required, would undoubtedly be appropriated to that 
purpose. There appears to be no limitation expressed in the latter clause of the 
will of the power and the right of the executors absolutely to convey these 
lands in accordance with the precedent clauses. In short, the intention of the 
testator, as disclosed by his will, appears to be that the executors might sell 
these premises, recommending them to look towards commercial uses for a 
successful market therefor; and if they should not turn out to be available for 
such purposes, then to sell them for the payment of debts, if necessary.

Such being the case, the decision of the learned judge at the circuit was 
correct, and judgment should be ordered for the defendants upon the verdict, 
with costs.

Barker, P. J., and Dwight, J., concurred.

Motion granted; judgment ordered for the defendants on the verdict.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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