
    (9 Misc. Rep. 436.)
    In re PURDY’S ESTATE. In re TOMPKINS.
    (Surrogate’s Court, Westchester County.
    July, 1894.)
    Rights of Legatees—Payment of Expenses of Administration.
    Where a will directs the executors to sell certain land, and to pay the surplus of the proceeds, after discharging debts and funeral expenses, equally to certain persons, such surplus cannot be used to pay expenses of administration or commissions; testator having left other personalty sufficient to pay all other legacies in full, besides such expenses and commissions.
    Judicial settlement of the accounts of Theodore Tompkins, surviving executor of John Purdy, deceased. The will directed the executors to sell certain lands, and out of the proceeds to discharge debts and funeral expenses and to pay the surplus to testator’s widow and children, in equal parts. All other property was bequeathed in trust for specific purposes. The land was sold, and debts and funeral expenses paid therefrom. The executor seeks to subject the balance to a proportional share of administration expenses with the personal estate. Ordered paid as legacies.
    D. W. Travis, for the executor.
    Lent & Herrick, for James B. Arcularius.
   COFFIN, S.

A testator may, at his option, give land, or the proceeds of the sale of land. Here his will converted the land into personalty one year from the time of his death, and the proceeds of the sale were given by him to his widow and two children, share and share alike, less the sum of his debts and funeral expenses. Thus he gave them residuary legacies. Deducting the amount of the debts and funeral expenses from the $1,500 for which the land was sold left a balance of $1,319.42, each one’s share being $439.81. Thus it was, in effect, a legacy of that amount to each one; and legacies must be paid in full, without any deduction for expenses of administration or commissions, where there is other personal property sufficient to pay all other legacies in full, besides such expenses and commissions. Such is the well-settled rule. The executor, however, having sold the land and paid the debts and funeral expenses, will be entitled to his commissions on the proceeds of sale out of other funds of the estate, on paying the legacies mentioned to the parties entitled thereto. Ordered accordingly.  