
    In the Matter of the Judicial Settlement of the Accounts of John B. Fuller, as Executor of Sarah A. Tillman, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Will—Equitable conversion.
    Where the testatrix gives to her husband the use during his life of all her real estate, and, if that should be insufficient for his support, directs the executors to use a requisite portion, or, if necessary, the whole, of the real estate for such purpose, and to divide the proceeds from the sale of any of her real estate, if any is left, equally between her children, giving them full power and authority to sell, transfer and convey, by deed or otherwise, such real estate, the power of sale operates as a conversion of the land into personalty.
    Appeal from an order, opening a decree rendered on the settlement of the accounts of the executor.
    
      William E. Hobby, for app’lts; James S. Thompson, for resp’t.
   Bradley, J.

The ultimate disposition of some of the questions in this matter may be dependent upon the effect of certain provisions of the will bf the testatrix. By it she gave to her husband the use during his life of all her real estate, and, if that should be insufficient for his support, the executors were directed to use a requisite portion, or, if necessary, the whole, of the real estate for such purpose. Then followed the provision that:

“ The proceeds from the sale of any of my real estate, if any left, shall be divided equally, «share and share alike, between my three children, above mentioned. I give my executors, hereinafter named, full'power and authority to sell, transfer and convey, by deed or otherwise, my real estate, to the same extent I might do if living.”

Only one of the two persons nominated by her to be executors accepted the trust. By the terms of the will, he had all the powers given to both. The testatrix survived her husband. Within a year after her death, two of the children joined in a conveyance to the third, Bhoda Oxley; and she thereupon made to Lorenzo B. Doty her bond, with a mortgage on the premises, to secure the payment of a loan of $2,000 made by him. Of this money, $150 was taken by the executor, and the residue was divided between the other two children, Mrs. McKeon and Charles H. Tillman, by whom the conveyance was made. The premises were afterwards conveyed by Mrs. Oxley to Webster and Arnold, subject to such mortgage, upon which there remained unpaid $1,600, and they thereafter made further payments upon it.' Afterwards a judicial accounting of the executor was had, and a decree of the surrogate’s court to that effect entered, in which it was ordered that there was a deficiency of $443.72 in the assets of the estate of the decedent, and that it remains a lien and charge on the estate ; that part of said deficiency consisted of a claim of the executor amounting to $19.26, a claim of Charles Tillman of $211.56, and a claim of J. H. Buell of $156.85 ; that such three claims were unpaid, and were valid and subsisting liens upon said estate ; and that the executor pay them. The petition upon which this decree was opened was that of Doty, the mortgagee, and Webster, one of the grantees of the premises. They were not made parties to the proceeding in which the decree was made; and the petition contains various alleged reasons for the relief sought, among which are the charges-that the claim of Buell was barred by the statute of limitations, that of Tillman is fictitious, and not a just claim against the estate, and that the mortgage to Doty and the deed to Webster and Arnold are superior to the claim of any creditor of the decedent upon such land. On the part of the appellants, it is said that there was no occasion to make the petitioners parties to the proceeding, because at the time it was taken the claims of creditors-could not be charged upon the land of which the testatrix died seized, because, when the proceeding for the judicial accounting-was instituted, more than three years had elapsed after letters testamentary were duly issued. Code Civ. Proc. § 2750. •

If, as claimed by the learned counsel for the appellants, the power of sale was given merely to divide the proceeds among the-three children, they took title subject to the execution of the power, and. the three-year limitation was a bar to a proceeding in the sursogate’s court in behalf of the creditors for disposition of the land to obtain payment of their claims from its proceeds; and upon that assumption, the petitioners were not necessary.parties to the-judicial accounting. Sayles v. Best, 140 N. Y. 368 ; 55 St. Rep. 779. But this evidently was not the view of the surrogate. He treated the power of sale as not thus limited, and concluded that by the will there was a conversion of the real estate into personalty. For that reason, the decree declared that those claims were valid and subsisting liens upon the estate, and directed the executor to pay them. The estate referred to in the decree was none other than that furnished by the land before mentioned. Such determination and direction declared by the decree gave the petitioners a standing which enabled them to seek relief against it. In re Flynn, 136 N. Y. 287; 49 St. Rep. 388. And there are-matters alleged in the verified petition justifying the opening of the decree of the surrogate’s court. Charles Tillman does not appeal; and, as it is not claimed in behalf of appellants that any claim of the creditors can be effectually asserted against the land in question upon the idea that it can be treated as personalty, there is no-occasion to consider that question on this review. The order opening the decree was authorized by the statute (Code Civ. Proc. § 2481), and was properly granted. The order should therefore be affirmed.

All concur.  