
    Matter of Bolton.
    (Surrogate’s Court—Westchester County,
    November, 1893.)
    After directing the payment and discharge of all her debts testatrix devised a house and lot to a son, and the residuary estate, real and personal, was given to her children, share and share alike. The debts greatly exceeded the personal estate after deducting- funeral expense's and expenses of administration. Under a power of sale the executors sold all of the real estate except that specifically devised. Held, that the fee of the real estate was in the devisees subject only to the exercise of the naked power of sale conferred on the executors, and that, for the purposes of distribution, the proceeds of the sales must be regarded as real estate, and were not subject to the payment of decedent’s debts, nor to any expenses incurred by the executors in disposing of the personal estate or the accounting therefor.
    Also, held, that out of the proceeds of sale the executors were entitled to-their commissions and the expenses incident to the exercise of the power of sale, and of defending their rights thereunder when assailed or interfered with.
    The deceased left a will bearing date April 6, 1880. She died September 29,1882, and the will was admitted to probate in November of the same year. The will provides as follows:
    “ First. After all my lawful debts are paid and discharged, I give and bequeath to my daughter, Catherine E. Bolton, all my household furniture, beds and bedding, and my silver and plated ware, and all my clothing.
    
      “ Secondly. I give, devise and bequeath to my son, Henry B. Bolton, the house and lot where he now resides in the town of Westchester.
    
      
      “ Thirdly.” Provided for the investment of the sum of $1,500, the interest of which was to be paid to the trustees of a church towards its support, which provision has been held to be void, and also for the erection of a monument and putting in order the family cemetery at Woodlawn, in case she should not do so before her death. In the same clause was used the following language: “ And I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever in their judgment they may deem for the best interest of my estate, and to give good ■and sufficient deed or deeds for the same.” By the next clause she provided as follows: “ I give, devise and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children” (naming seven, among whom are the two executors) “ and my adopted son, William H. Birchall, to be equally ■divided between them, share and share alike.”
    Other facts appear in the opinion.
    
      A. O. Salter and Alex. Thain, for executors.
    
      James R. Marvin, for Sarah L. Myers and Mary A. Littlewood, legatees, etc., contestants.
   Coffin, S.

This is an accounting by the executors for the proceeds of sales of real estate made by them under the provisions of the will, amounting to upwards of $40,000, and the most important question to be considered is whether any portion of this sum, as far as necessary for that purpose, may be applied toward the payment of the debts of the deceased. It is claimed on behalf of the executors that the terms of the will, taken in connection with the pecuniary condition of her affairs, indicate an intention to charge the lands with the payment of debts, and thus operate as an equitable conversion of the real estate into legal assets for that purpose, which is denied by the contestants.

It appears that the personal estate, after the deduction of funeral expenses and the expenses of administration, did not exceed some $1,200 or $1,500, and the debts amounted to about $8,000 or $9,000. By an accounting by the executors of the personal estate, recently had, a balance, consisting chiefly of money paid on account of debts in excess of assets, was found to be $2,472.11, which is a part of the whole of the debts as above stated. The real estate consisted of three parcels, worth, perhaps, at testatrix’s death, some $20,000 to $25,000, but much enhanced in value at the time of sale of two parcels, that parcel devised to Henry B. Bolton remaining unsold. Under this state of facts it is claimed that this-case comes within the principle decided in Matter of Gantert, 136 N. Y. 106, in which case much stress is laid upon the fact that the testator must have known that the debts exceeded the-personal property by about $29,000, and his realty was worth clear, about $7,300. While the facts here are, in some respects, stronger than iii that case to sustain the view there-taken, yet another exists calculated materially to have changed the result reached. Here the legacies and devises were given after the debts were paid cmd discharged, and the residuum, personal and real, was given to her children and adopted son, share and share alike. While these provisions would have probably been regarded as strengthening the view there taken,, as indicating the intention to have the realty equitably converted into assets for that purpose, yet each one, standing alone, has been declared to have no such significance. As to the first, see Matter of City of Rochester, 110 N. Y. 159 ; as to both, see Kinnier v. Rogers, 42 id. 531. The intention of the testatrix, as ascertained from the will, and possibly from surrounding circumstances, must govern. The chief, and it seems to me, a fatal distinction between this case and that of Gantert, 136 N. Y. 106, is that here there was an absolute-devise of a portion of the real estate to Henry B. Bolton. The learned judge who delivered the opinion in that case, holding that there was a conversion, takes occasion to say : “ If the testator has specifically devised designated portions of his realty, or impressed them with separate trusts, the presumption is very strong, and usually controlling, that he did not intend that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction. to sell for the payment of debts cannot be implied in such cases, because, in order to sustain the structure of the will, there must be implied a diiection not to sell for such a purpose. Ho difficulty of this kind is in the way here.” In creating the power to sell the real estate in this case, that devised specifically was not excepted from its operation nor can it be implied. In terms it applies to all. We are scarcely justified in saying that the executrix knew the situation of her pecuniary affairs — how much personal estate she had, or the amount of the debts she owed. Few widowed women have much knowledge of such matters. Had she possessed an approximate conception of her condition in that respect, it is not probable that she would have made the bequests of the household furniture, and for the benefit of the church, which together amounted to about the sum of the inventory, which was $2,010. So that the case differs from that of Gantert in this respect also. After much consideration and the examination of authorities, the conclusion is somewhat reluctantly reached that no such charge or equitable conversion was intended or made.

Hence the proceeds of the sales must be regarded as real estate for the purposes of distribution. Consequently they are not subject to the payment of the debts of. the deceased remaining unpaid or that have been paid by the executors and which they seek to recoup, and the time has long since expired within which the lands could have been so subjected by proceedings in this court, nor to any expenses incurred by the executors in disposing of the personal estate or the accounting therefor. In the view taken, the fee of the realty was in the devisees subject only to the exercise of a mere naked power conferred upon the executors. They have exercised the power, and having received the proceeds, which are now brought in for distribution, they are not only entitled to their commissions, but expenses incident thereto, and of defending their rights under the power when assailed or interfered with by whomsoever. From the testimony, it strikes me that, considering the various litigations they were forced into in defense of the obligations they were under to discharge their duty, they should be allowed the sum of §2,000 over and above what their counsel received on the dissolution of the injunction; that the services of their counsel were varied, made vexatious, if not often'embarrassing and difficult, by the contestants. No lawyer is fully competent to testify, with any degree of accuracy, to the value of the- services of another. The mere manual labor of drawing up papers, making up briefs, etc., is but a tithe of the work a lawyer does, and evidence may be given on those subjects ; but the thought he bestows, his care and anxiety, are not on the surface, and can only be the subjects of a rough guess, perhaps founded on a limited experience drawn from his own habits of thought and mode of life.

Although the taxes and water rent may have properly been collected from the devisees, as owners, yet they had to be jiaid in order to follow up the sales with clear titles. Now they will come out of the fund, which, in effect, amounts to the same thing.

Under the circumstances disclosed, $750, being the amount of the commission paid to Broker Berrian, seem to have been justified and is allowed, as also the $145.75 paid to the broker on the sale of the Bronxdale property.

■ Oosts are allowed to the executors only.

©ecree accordingly.  