
    Sarah L. Myers et al., App’lts, v. Thomas Bolton et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    Partition—Proceeds op sale by executors under power.
    Where, subsequent to the commencement of an action of partition among devisees, the executors sell the land under a general power of sale in the will, and the devisees other than the plaintiffs join in a conveyance to the purchaser, a denial of a motion to compel the executors to bring the proceeds of sale into court is proper, as in case the sale was authorized by the will, the surrogate’s court had jurisdiction, on settlement of the executor’s accounts, to decree distribution; while, if power of sale was not conferred by the will, the lands were vested in the devisees, and plaintiffs had no right to insist that defendants should pay into court the consideration which they received from the purchaser for their several undivided interests.
    
      Appeal from order denying motion to compel the payment of moneys into court.
    
      James R. Marvin, for app’lts; Alex. Thain, for resp’ts.
   Parker, J.

The plaintiffs and six of the defendants are residuary legatees and devisees under the will of Ann Bolton, deceased. The action in which the order appealed from was made was brought to partition the lands so devised. Thereafter the executors, Thomas and Ilenry B. Bolton, under a general power of sale given by the will, assumed to sell and convey a portion of the premises for the sum of $30,000. The plaintiffs challenging the validity of the power of sale, all of the devisees except the plaintiffs, who refused to do so, united in a conveyance to the purchaser. The executors offered to bring the proceeds of the sale into the surrogate’s court, where their accounting was pending, but objection was made by these plaintiffs that there was no authority vested in them as executors to make the sale, and hence the proceeds could not form a part of their account. Subsequently the executors sold the residue of the real estate which passed by the residuary devise, from which was realized the sum of $8,161.97. The latter sum was applied in payment of the debts of the deceased. Since then proceedings have been taken for a final judicial settlement of their accounts as executors before the surrogate of Westchester county; an account has been filed, reciting the receipt of the proceeds of the last sale, and the disposition thereof; plaintiffs have appeared therein, and requested and secured adjournments from time to time, but at the date of making this motion had not filed any objections to such account. Upon these facts the court denied the plaintiffs’ motion to compel the executors to pay the sum of $38,161.97 into court.

Aside from the fact that the executors, as such, are not parties to the action in which this motion is made, the decision of the court was right, for the following reasons:

1. If the sale of the lands attempted to be made by the executors was authorized by the will, then the surrogate’s court in which proceedings are pending for a judicial settlement of their accounts has jurisdiction to decree distribution, whether the proceeds are to be regarded as realty or personalty. Code Oiv. Pro., § 2724, subd. 4. Such has been the law of this state at least since 1837. Chapter 460, Laws 1837.

2. If power of sale was not conferred on the executors by the will, as the plaintiffs have hitherto contended, then the undivided part of the real estate devised to each of them by the residuary clause is now vested in them, and may be partitioned in the pending action; but they have no right to insist that the other devisees shall pay into court the consideration which they may have received from a purchaser for their several undivided interests.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.  