
    In re NOE'S ESTATE.
    (Surrogate’s Court, New York County.
    February 18, 1916.)
    1. Executors and Administrators @=339—Power or Sale—Statute.
    Code Civ. Proc. § 2703, subd. 5, provides that real property may be sold to pay legacies charged thereon. Section, 2702 provides that real estate of which the decedent died seised may be sold as prescribed in Code Civ. Proc. tit. 4, art. 3, c. 18, except where it can be disposed of under a valid power contained in a will, for the purpose for which it might be disposed of under that title. A will gave to the executors a valid power to sell for dividing the proceeds among the legatees entitled thereto. Held, that the procedure of the code provision for sale was neither necessary or proper in disposing of the real estate of which the testatrix died seised, so that the executors’ application for a sale thereunder will be denied.
    [Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. @=1417-1424; Dec. Dig. @=339.]
    2. Conversion @=15—Sale or Realty—Proceeds as Personalty.
    Where there is a power of sale in a will, the executors have a right to sell the realty, and the proceeds will be regarded as personalty for the payment of debts and legacies.
    [Ed. Note.—For other cases, see Conversion, Cent. Dig. §§ 28-37, 52; Dec. Dig. @=15.]
    ^^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Application by the executors of the estate of Nellie M. Noe for authority to sell the real estate of which the testatrix died seised, and to have a claim against the estate determined by the court. Application for order directing a sale denied, and referee appointed to hear and determine the claim.
    
      Edward M. Burghard, of New York City (Louis V. Ebert, of New York City, of counsel), for executors.
    Harrison, Elliott & Byrd, of New York City (Robert W. B. Elliott, of New York City, of counsel), for Rev. Henry Lubeck and Rev. Joseph Rushton.
    Rorke & Kane, for legatees Healy.
    Lesser Bros., of New York City (William Lesser, of New York City, of counsel), for legatees Noe.
    De Eorest Bros., of New York City, for Presbyterian Hospital.
    Bonynge & Bonynge, of New York City, for Eliza H. MacLeod.
    Charles C. Cormany, of New York City, for Robert Caterson.
    Moen & Dwight, of New York City, for Woodlawn Cemetery.
    Stewart & Shearer, of New York City, for New York Society for Relief of the Ruptured and Crippled.
    Edward V. Farley, of Brooklyn, for St. Benedict’s Home.
    George W. Curry, of Long Island City, for S. T. B. Nichols.
    Strauss, Reich & Boyer, of New York City, for Dr. Joseph Byrne.
   FOWLER, S.

The executors have filed their account and ask that they be authorized to sell the real estate of which the testatrix died seised in accordance with the provisions of chapter 18, title 4, article 3, C. C. P., 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 seised, td her executors in trust to sell and convert tire 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, C. C. P., provides that real property may be sold for the payment of legacies charged thereon. In a proceeding to construe the will of the testatrix I decided that the general pecuniary legacies were intended by the testatrix to be charged upon the real estate. Section 2702 of the Code provides that real estate of which the decedent died seised 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 by that article is neither necessary nor proper in disposing of the real estate of which the testatrix died seised. 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, 35 N. E. 664; Matter of Bolton, 146 N. Y. 257, 40 N. E. 737. 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.

Proceed accordingly.  