Loring agt. Binney. Torts, 324). But upon the authority of Van Slyck agt. Snell (6 Lans., 299) I vote for affirmance. SUPREME COURT. CALEB WILLIAM LORING, executor, &c., of the last will of MARY G. P. BINNEY, deceased, agt. WILLIAM G. BINNEY and others. Will-Construction of - Where the will directs the property to be sold, but gives no direction as to who should execute power of sale — Who to sell. Where the will directed the property to be sold, but gave no directions as to who should exercise the power of sale, such power being one authorized by the Revised Statutes, it would be the duty of this court to designate a trustee to execute the will, provided that it could be seen, from the will itself, that the execution of the power, without such designation, would utterly fail. But where, by the terms of the will, the realty is converted into personalty, or a sale is necessary, as its proceeds to be realized from a sale, and not the land itself, is given to the heirs, there is an implied power in the executor to sell such realty for the purpose of distribution. Special Term, New York, May, 1885. THIS was an action brought by the plaintiff, as executor, under the last will and testament of Mary G. P. Binney, de ceased, for a judgment directing a sale of a house and lotNo. 17 Madison avenue, in the city of New York-owned by the testatrix at the time of her death. The plaintiff asked that he might be empowered to deliver a deed to the purchaser, and that the proceeds of the sale might be distributed according to the provisions of the will. The will directed the property to be sold, but gave no directions as to who should execute the power of sale. William Watson, for the plaintiff. George W. Van Slyck, for defendant. Loring agt. Binney. VAN VORST. J.-The testatrix, Mary G. P. Binney, by the seventh clause of her will, declared as follows: "I wish my property in Madison avenue, known as No. 17, to be sold, and the proceeds of such sale to be distributed among my heirs according to law." No direction is given in words as to the person who shall exercise the power of sale. But as the power is one authorized by the Revised Statutes, it would be the duty of this court to designate a trustee to execute the will of the testatrix, provided that it could be seen from the will itself that the execution of the power without such designation would utterly fail. But by the terms of the seventh clause of the will the realty is converted into personalty. A sale is necessary, as its proceeds, to be realized from a sale, and not the land itself, is given to the heirs. No other clause of the will directly touches the house and lot on Madison avenue. There are legacies given by other clauses of the will, but they are not charged upon the premises in question, and are not payable from those proceeds. The proceeds to be realized upon the sale of the Madison avenue house and lot, with the disposition of which amongst the heirs the executor is chargeable, are assets. The distribution of those assets belong to the administration of the personal estate. It must be held, therefore, that there is an implied power in the executor to sell this house and lot for the purpose of distribution (Meakings agt. Cromwell, 5 N. Y., 136). The decree to be made in this action will be settled on notice. NOTE. By the judgment afterwards entered in this action, the referee, under whose direction the sale was ordered to be made, was directed to pay the proceeds of the sale to the plaintiff as executor, &c., on his giving security to be approved by the court for the faithful discharge of his duties under the will, and judgment of this court, and for accounting for such moneys when required by the surrogate. The plaintiff was a non-resident of this state.-[Ed. Miles et al. agt. Sackett. SUPREME COURT. WILLIAM N. MILES et al., as executors of the last will and testament of JAMES H. SACKETT, deceased, respondent, agt JAMES W. SACKETT, appellant. Evidence-When declarations of deceased inadmissible in favor of executor In an action brought by an executor to recover property of the deceased from persons claiming to own it by virtue of a gift from the testator, declarations of the deceased, inconsistent with such claim, being selfserving, and not contemporaneous with the transaction, are inadmissible in favor of the executor. First Department, General Term, January, 1886. Before DAVIS, P. J., BRADY and DANIELS, JJ. THIS appeal is taken by the defendant from a judgment against him, entered upon the report of the referee, for the sum of $9,595.31. The action is brought by the plaintiffs, as executors under the last will and testament of James H. Sackett, deceased, upon a note of $5,000 and interest, made by the defendant on the 2d of March, 1874, to the said James H. Sackett. The answer of the defendant admits that he made and gave the note sued upon to James H. Sackett at the time alleged in the complaint, but alleges that two years thereafter said James H. Sackett, who was the uncle of defendant, returned the note to him and made him a gift of the same. A paper produced on the trial by the plaintiffs, was alleged by them to be the note in suit, but defendant testified that the paper was merely a copy of the note which he had made, and which was taken from him by the plaintiffs. The testimony of various witnesses was offered on behalf of the defendant, to show that at various times the deceased, James H. Sackett, made statements, admissions and declarations, some of which tended to show that he VOL III 19 Miles et al. agt. Sackett. was about to make a gift to his nephew, the defendant, of the amount of the note; others, again, that he had made such gift, and others, that, while he expected to collect interest upon the note, he never would demand the principal. It will be noticed that all this evidence is admissions against interest by the testator, whom the plaintiffs represent. To meet and rebut these declarations of decedent against interest, the plaintiffs put on the stand Mrs. Jane C. Bush, who testified that she had a conversation with the deceased, James H. Sackett, the Monday but one before his death. The deceased died on the 5th day of May, 1878; therefore this conversation offered in evidence must have occurred in the latter part of April, 1878; that is, four years after the making and giving of the note in suit. It must also be noted, that the conversation sought to be elicited by Mrs. Bush's testimony, forms no part of any of the conversations testified to on behalf of the defendant; that it is not shown that the defendant was present at such conversation, or that the same was ever brought to his knowledge. The theory of the plaintiffs evidently is, that admissions against interest by the decedent, made at one time, will authorize the putting in evidence of declarations in his own favor made at another. Under the objection of defendant that the question called for self-serving declaration of the decedent, and that the conversation called for was not contemporaneous with the delivery of the note, the witness testified to declarations of deceased in his own favor, which if true, would show that the evidence of defendant's wit nesses was entirely false; that the decedent held the note at the time of such conversation and expected to enforce it against defendant. The appellant respectfully urges that such evidence, which was of vital importance in the case, is entirely inadmissible. This appeal is taken upon the single ground that the improper admission of the declarations of deceased, through the witness Bush, and enough testimony is presented in the case to show upon what theory it was introduced by plaintiffs. Theodore Connoly, for appellant, made and argued the follow Miles et al. agt. Sackett. ing points: 1. The declarations of the deceased, as testified to by the witness Bush, being self-serving and not contemporaneous with the transaction upon which this action is brought, are inadmissible. "A party's self-serving declarations cannot be put in evidence in his own favor, whether he be living or dead, at the trial. Nor is the result changed by the statutes enabling a party to be called as a witness in his own behalf That which he could prove by his own sworn statements he is not permitted to prove by statements which are unsworn. In any view, therefore, the extra judicial self-serving declarations of a party are inadmissible for him with the exceptions hereinafter stated as evidence to prove his case" (2 Wharton Ev., sec. 1101). (The present case is not within any of the exceptions given by Wharton.) It does not seem necessary to cite many cases to prove these propositions, which are perfectly well established and familiar to the courts, but it may be of interest to trace the course of decisions in this state upon the subject. "It is," says SPENCER, C. J., in the well-known case of Roseboom agt. Billington (17 Johns., 182), "a fundamental principle that the private ex parte acts of an individual shall not be evidence for him unless those acts were in collision with his interests at the time. To admit evidence of the party's own creating, I consider repugnant to every sound principle of law. Declarations by a party in his own favor never can be admitted" (cited and followed in Wilson agt. Pope, 37 Barb., 321, 324). And in a later case it. is said: "The decisions, cited in 1 Cowen & Hill's Notes, pages 600, 661 and 662, which seem to hold that the declarations of the alleged donor is evidence against the donee where there is a doubt as to whether a gift has been established, conflicts with principles well established in this state, and should not be followed" (Woodruff agt. Cook, 25 Barb., 505, 511). In Chase agt Ewing (51 Barb., 597, 614), which is an action brought by the executor of a mortgagee to foreclose the mortgage, it was held that declarations of the testator proving that the indebtedness secured by the mortgage was a loan and not an advancement were inadmissible, and the court said at page 614: "The con |