
    Matter of the Estate of Myrick Plummer, Deceased.
    (Surrogate’s Court, New York County,
    July, 1902.)
    Legacy when charged on land.
    Where a will gave legacies far in excess of the personalty, conferred upon the executors full power to sell the realty although no division of it was contemplated t>y the will, and the proceeds of sale were actually in the hands of the executors accounting, the surrogate considered that he had power to determine whether the legacies were charged on the land and held that they were so charged.
    Proceeding upon settlement of the account of executors.
    Omri E. Hibbard, for executors.
    Bowers & Sands, for Hospital Guild, legatee.
   Thomas, S.

While this court may not in all cases adjudge that the real property of a testator remaining unsold is chargeable with a lien for legacies, a jurisdiction exists in a surrogate on the accounting of an executor to determine the ownership of the cash proceeds of land sold by such executor under a power. Such proceeds constitute assets for the payment of debts (Erwin v. Loper, 43 N. Y. 521; Glacius v. Fogel, 88 id. 434; Matter of Powers, 124 id. 361), and where legacies are, by the will, charged" upon land sold, a surrogate may direct payment of such legacies out of the proceeds of sale of such land. Matter of Vandevort, 8 App. Div. 341. It follows of necessity that he may determine whether the legacies are so charged as an incident to the exercise of this jurisdiction. Matter of Grotrian, 30 Misc. Rep. 23. The money legacies directed by the testator to be paid largely exceeded the entire amount of bis personal estate at the time of the execution of the will and at all times thereafter. The testator gave to bis executors unlimited power to sell bis real property and convert it into money. Ho division of his real property was directed that would require this power of sale, and from the whole tenor of the will I am satisfied that its primany purpose was to enable the executors to pay the legacies. I will therefore determine that the legacies are charged upon the real estate. The New York Medical College and Hospital for Women was not created under the Membership Corporations Act, and the words in the charter granted to it by the board of regents in 1895 did not suffice to impose upon it any disability to accept a legacy. The legacy to it is valid to its full amount, notwithstanding the fact that the testator died within less than two months after the execution by him of the codicil containing such legacy. Pritchard v. Kirsch, 58 App. Div. 332, affd., 171 N. Y. 637. Tax costs and settle decree on notice.

Decreed accordingly.  