
    Charles C. Fritz, Resp’t, v. Emil W. Fritz et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Partition—Equitable conversion.
    Where a testator directs his executors to sell his real estate and distribute the proceeds among persons named, such real estate is deemed converted into personalty and partition cannot he had, and the result of such direction is not changed by'the fact that the executors were given some-discretion as to the time of sale.
    Appeal from order sustaining demurrer to answer.
    Action of partition.
    
      W. H. Hamilton, for app’lts; Mitchel Levy, for resp’t
   Van Brunt, P. J.—It

is the well established rule that where-a testator directs his executors to sell his real estate and distribute the proceeds among persons named in his will such real estate i& deemed to be converted into personalty and partition cannot be had. Underwood v. Curtis, 127 N. Y., 523; 40 St. Rep., 255; Robert v. Corning, 89 N. Y., 225-229; Morse v. Morse, 85 id., 53-59; Power v. Cassidy, 79 id., 602; Everitt v. Everitt, 29 id, 39.

This was the direction in the case at bar, and the fact that the executors were given some discretion as to the time of sale in noway changes the result of the direction to sell."

In the case of Underwood v. Curtis, supra, the executors were directed to convert the real estate into money at such time as they might think proper within a period of ten years; held, that the real estate was converted into personalty and partition could not be had.

In Robert v. Corning, supra, the testator required his executors: to sell all his real estate, but authorized them in their discretion to delay a sale for a period of three years; held, that this was an absolute conversion of the real estate into personalty as of the-time of the testator’s death.

The case of Duffy v. Duffy, 50 Hun, 266; 19 St. Rep., 228, in no wise conflicts with this view. In that case there was no devise of the real estate in question or of the proceeds thereof. The-will contained a mere naked power of sale, and all that was held was that the real estate descended to the heirs-at-law, and unless power of sale was exercised its existence was no bar to partition.

The order and judgment should be reversed and the demurrer overruled, with leave to the plaintiff, upon payment of the costs and disbursements, of this appeal and of the demurrer in the court below, to withdraw his demurrer.

O’Brien and Lawrence, JJ., concur.  