In re the Estate of Noe

Fowler, S.— The executors, have filed their accounts and ask that they be authorized'to sell the real estate of which the testatrix died seized in accordance with the provisions of chapter 18, title 4, article 3, Code of Civil Procedure, and that the alleged claim of Dr. Byrne for $99,568 be determined by this court. The testatrix gave her residuary estate, which included all the real estate of which she died seized, to her executors in trust to sell and convert the same into money as soon as could be conveniently done after her decease, and to divide the proceeds of sale and the entire residuary estate into two parts or shares and pay each of such shares to the legatees mentioned in her will. Subdivision 5 of section 2703, Code of Civil Procedure, provides that real property may be sold for the payment of legacies [269] charged thereon. In a proceeding to construe" the will of the testatrix' I decided that ‘the general pecuniary legacies were intended hy the testatrix to he charged upon the real estate. Section 2702 of the Code provides that real • estate of which the decedent died seized may be sold as prescribed in title 4 of article 3 of chapter 18 of the Code, except where it can be disposed of under a valid power contained in a will for the purpose for which the same might be disposed of under that title. The executors are given a valid power of sale; therefore article 3 of title 4 of chapter 18 of the Code has no application, and the procedure prescribed hy that article is neither necessary nor proper in disposing of the real estate of which the testatrix died seized. The real estate is not devised to. a particular devisee; it is given to the executors for the purpose of selling it and dividing the proceed® among the legatees entitled thereto. When, there is a power of sale contained in a will the executors have a right to. sell the real estate, and the proceeds.will be regarded as personalty for the payment of debts and legacies. (Cahill v. Russell, 140 N. Y. 402 ; Matter of Bolton, 146 id. 257.) The executors in this matter having been authorized and directed by the will to sell the real estate, the application to the surrogate for an order directing a sale in accordance with the provisions of chapter 18, title 4, article 3 of the Code is denied. I will appoint Peter B. Olney, Esq., referee to hear and determine the claim of Dr. Byrne for the .sum of $99,568. The judicial settlement of the account of the executors will be adjourned until the determination of this claim. Decreed accordingly.