
    In the Matter of the Estate of Bernard Travis, Deceased.
    
      (Surrogate’s Court, Westchester County,
    
    
      Filed November, 1894.)
    Legacy — Payment.
    Where there is an equitable conversion of the realty and there has been a delay in its sale, the surrogate may direct the payment of a legacy where the entire estate is sufficient to pay all debts and legacies which are entitled to priority or equality of payment.
    Application by the general guardian of infant legatees for payment of interest on the legacies.
    The deceased left a last will and testament, disposing of an estate estimated to be of the value of $40,000. On the real estate were mortgages- to the amount of $12,800. He directed his executors, among whom was Edward M. L. Ehlers, to sell his real estate, and out of the proceeds to pay to Estella Travis a legacy of $12,000, to Margaret Travis $5,00-0, and to Augusta, Le Roy and Robert Travis, infant grandchildren of testator, $1,000 each, to be invested, the income of which was to belong to said infants, or to be applied to their support. A judgment has been obtained against the executors for about $5,000-, an appeal from which has been taken and is still pending. The real estate lay in and about Katonah, and since the probate of the will the title to a portion of it has vested in the city of New York for wate-r purposes, the value of which has not yet been determined, but proceedings to- that end are pending. Charles E. Travis, the general guardian of the infants-, now makes- application for an order directing the executors to pay the interest on the legacies so bequeathed to them.
    Pratt & Thompson, for petitioner; Joseph O. Crane> opposed.
   O’oefin, S.

It is well settled that a surrogate has no power, in a case like this, to compel the executors to- sell the real estate; but he may, in a proper case, decree payment of a legacy, and thus, perhaps, indirectly and legitimately, coerce a sale, where the strictly personal property is insufficient for the purpose. The legacies in question are due, and the legatees are entitled to them; and the decree prayed for should be granted, if there is u money or other personal property ” which may be so applied without seriously affecting the rights of others entitled to priority or equality of payment. There can be no doubt that the will of the testator effected an equitable conversion of his land into money (Gilb. Lex. Pr. 243), and it must be treated as money. See, also, 2 Story Eq. Jur. p. 98, sec. 190. It seems to be conceded that the estate is of the value of $40', 00 O', all of which' must be treated as money in the hands of the executors, while the amount of debts and legacies is about $38',000, thus demonstrating that the decree for payment may be granted without seriously affecting the rights of any others intereste4 in the estate. These grandchildren are minors, and justice requires that they should be paid. A portion of the real estate was not taken by the city of New York, and still remains unsold by the executors. Precisely when the city became the owner of the other portion does not appear, but my impression is that a considerable period intervened between the time when the executors assumed the duties of their trust and the obtaining of the title by the city, during which the whole of the realty might have been 'sold. However this may be, the legacies should be paid.

Decreed accordingly.

Note. — Affirmed, 85 Hun, 420.  