
    Matter of the Application of John J. Mansfield et al. for Payment of Legacies by John J. Storm, Executor.
    (Surrogate's Court—Westchester County,
    February, 1894.)
    The will of testatrix gave the residue of the personal estate to the petitioners, and directed the executors to sell the real estate and divide the proceeds among persons other than the petitioners. An application was made under section 3722 of the Code for the payment to the petitioners of a sum larger than the balance of the personal property, after payment of debts and expenses, on the ground that there was a conversion of the realty, and that thereby it was subjected equally "with the personalty to the payment of debts and expenses. The answer of the executor denied this, and alleged that the personalty is the primary fund for such payment. JleltJ, that the issue thus raised by the answer involved questions which the surrogate could not try in this proceeding, and that the same should he dismissed without prejudice to a proceeding for an accounting.
    The testatrix, by her will, after making some specific bequests, and providing for the erection of a monument, the expense to be paid out of her personal estate, gave all the rest and residue of her personal estate to the petitioners. She then ordered and directed her executors to sell and convey her real estate, and to divide and distribute the proceeds, in certain shares, among certain relatives of her deceased husband, among whom the petitioners were not included. These latter, in their petition for the payment of their claims, show that the amount of the inventory of the personal estate, as filed, is §27,906.43, and that the real estate so ordered sold is of the value of §18,000; that they have each been paid $2,500 on account of their respective legacies, and that the debts and estimated expenses of administration will not exceed about $7,500, and they ask for a decree directing the executor to pay to each of them the further sum of §9,000, claiming that the real estate was converted into personal by the will, and thereby subjected equally with the other personal property to the payment of debts and expenses. The verified answer of the executor, among other things, refers to the will, and denies that the proceeds of the real estate are subjected equally with other personal property to the payment of debts and expenses, and alleges that said personal estate is the primary fund for the payment thereof.
    
      Remsen <& Parsons, for petitioners.
    
      M. Q-. Hart, for executor.
   Coffin, S.

Neither party seems to have had a very strict regard to the provisions of section 2722 (formerly 2717 and 2718) of the Code in preparing the petition and answer. Each of the petitioners, however, states his and her claim at $9,000. The answer, in effect, sets forth facts calculated to show that it is doubtful whether the petitioners’ claims are valid and legal to the extent claimed, and also substantially denying their validity or legality as a whole. The facts gathered from the petition show that the personal estate was valued at................................ $27, 906 43

Debts and expenses, estimated, at.... $7, 500

Paid on account of petitioners’ legacies 5, 000

-- 12,500 00

Leaving the residue, from inventory, at... $15, 406 43

One-half of which is............... ' 7, 703 21

or $1,296.79 less than is claimed by each. This deficiency is sought to be supplied by taking the necessary amounts from the proceeds of the sale of the real estate, which it is claimed will be legal assets when the actual conversion shall have been effected, which-has not as yet been done, and which proceeds will be equally liable with the residue of the personal estate for the payment of debts. and expenses of administration. The effect of making the decree for the payment to each petitioner of the sum now asked would be to-relieve the strictly personal estate from its liability to the extent of about $2,600, and shift it to the proceeds of the sale of the real estate. Can this be done in this case \

• Ordinarily, the rule is well established that an equitable conversion of realty into personalty takes effect at the death of the testator, and the proceeds are to be regarded as money from that period, and, where no other direction for their disposition is given, may be applied to the payment of debts and expenses of administration, the same as if they had been money in hand at the time of his death.

But where real estate is directed to be sold only for a certain purpose it is converted only for the purpose of the will, and that a devise for such a purpose, i. <?., the payment of certain legacies, does not throw open the fund to simple contract creditors, where there is sufficient personal property to pay the debts. Gibbs v. Ougier, 12 Ves. 413. So, where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale for the convenience of division; and A. and B. take their several interests in money and not land. Bogert v. Hertell, 4 Hill, 492, citing Smith v. Claxton, 4 Mad. 484. To hold otherwise would be to ignore and subvert the expressed intention of the testatrix.

This is the sole question discussed in the- brief submitted.

These principles of the law on the subject are not here stated for the purpose of a decision of the question, but in order to show that there is some matter I cannot now try, as well as to show that it is not proved to my satisfaction that there is money or other personal property of the estate, applicable to the payment or satisfaction of the petitioners’ claims, which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction. See Matter of Hedding M. E. Ch., 35 Hun, 315.

Some of the debts and the expenses of administration, it is understood, have not been fully paid, and the decree asked for would thus injuriously affect the rights of others entitled to priority of payment.

There seems to be no provision in the section for the payment of a part of the claim except where there is not sufficient funds of the estate to pay all, and there has to be an abatement of legacies or a fro rata share of the debts fixed, in which cases the decree may direct payment of their just proportional parts where the facts are agreed upon, but where they are in dispute they could only be ascertained on an accounting, which cannot be had in this proceeding. Hedding M. E. Ch., 35 Hun, 315. A “ just proportional part ” cannot be arrived at by mere approximation, estimate, guesswork. However, that is not this case. The claim is for $9,000 by each, and there is not sufficient money to pay them, without resort to the proceeds of the sale of the realty, and I am not satisfied that such resort can be had, and, therefore, the petition must be dismissed, without prejudice to an action or an accounting in behalf of the petitioners. Such an accounting, if desired, may be at once had on application therefor.

Decreed accordingly.  