
    Matter of the Estate of Emma I. Toplitz, Deceased.
    (Surrogate’s Court, New York County,
    November, 1919.)
    Wills — when power vested in a testamentary trustee to sell real estate may not be exercised — trusts.
    A power vested in testamentary trustees to sell their testator’s real estate may not be exercised after the death of the sole beneficiary of the trust estate, even though there be debts existing against the estate.
    Application for the construction of a will.
    Goldman & Unger, for petitioners.
    Milton S. Hoffman, for Florence B. Docter.
   Fowler, S.

The sole beneficiary of the trust estate having died and the power of sale vested in the trustees never having been exercised during his lifetime, has become extinguished, as there is no longer any necessity for the conversion of the real estate to accomplish any particular purpose specified in the will. Gourley v. Campbell, 66 N. Y. 169; Chamberlain v. Taylor, 105 id. 185. The fact that there may be debts existing against this estate is not in itself sufficient to sustain and keep alive the power of sale, for such power cannot be exercised for the payment of debts and obligations. Matter of McComb, 117 N. Y. 378. I will therefore hold that there is no valid, subsisting power of sale contained in this will.

Decreed accordingly.  