
    Matter of the Judicial Settlement of the Accounts of Theodore Tompkins, Surviving Executor of John Purdy, Deceased.
    (Surrogate’s Court—Westchester County,
    July, 1894.)
    Testator’s will directed his executors to sell a certain piece of real estate within one year after his death, and out of the proceeds to pay his just debts and funeral expenses, and gave the surplus to his wife and two children in equal parts. The residue of the estate was given to the executors for certain specified purposes. Held, that the bequest to his wife and children of the surplus proceeds of the real estate directed to be sold -was, in effect, a gift to each of a legacy to the amount of his or her share of the proceeds, after deducting the debts, and that such shares were not chargeable with any portion of the expenses of administration, there being sufficient other personal property to pay such expenses and commissions.
    The testator bequeathed all his household furniture to his widow. He then devised a certain parcel of land to his son, Stephen L. Purdy, and next provided as follows:
    
      “Third. I order and direct my executors hereinafter named, within one year after the probate of this my last will and testament, to sell or dispose of, either at public or private sale, the remainder of that piece or parcel of land, situate in Yorktown in said county, which was conveyed to me by Jacob Tompkins and wife by deed datéd April 15, 1865. * "x* *• Out of the proceeds of such sale I direct my executors to pay and discharge all my just debts and funeral expenses, and the surplus thereof I give and bequeath to my wife, Eliza Ann, my son, Stephen L. Purdy, and my daughter, Tamar Ann Bedell, in equal parts.” By the next clause he gave, devised and bequeathed to his executors all the rest and residue of his. real and personal property in trust for certain specified purposes. The above-mentioned parcel of real estate was sold for $1,500. The debts and' funeral expenses paid therefrom amounted to $180.58. The personal 'estate, other than the household furniture bequeathed to the widow, was abundantly sufficient to pay all of the expenses of administration, including commissions, but the executor claims that the $1,500, less the $180.58, should pay its proportional share of them.
    
      
      D. W. Travis, for executor.
    
      Lent & Herrick, for James B. Arcularius, assignee of Tamar A. Bedell, legatee.
   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.  