
    In the Matter of the Judicial Settlement of the Account of Proceedings of Benjamin Fagan, as Executor, etc., of John Hyland, Late of the Town of Ossining, Deceased. Benjamin Fagan, as Executor, etc., Appellant; Mary E. Hyland and Susan L. Hyland, Respondents.
    Second Department,
    February 5, 1915.
    Real property — devise subject to power of sale — devisees of undivided interest cannot elect to take lands — when proceeds of sale pass to grantee of devisees—executor’s accounting after sale — fraud of grantee.
    Devisees of a portion of lands which are subject to a power of sale given to an executor cannot discharge the power of sale by an election to take the land itself, for such election requires the concurrence of the other devisees.
    Where the devisees conveyed their undivided interest by quitclaim deed, and the executor subsequently exercised his power of sale, the interest of the devisees was transferred to the proceeds of the sale, and their grantee was entitled to their portion of the same. Hence, where the executor relying upon such recorded conveyance paid the interest of the devisees to then- grantee, his accounts cannot be surcharged with the sum paid.
    Nor, it seems, can the devisees, being of full age, question their conveyance on the executor’s accounting. Any possible fraud upon the part of their grantee is foreign to the accounting.
    Appeal by Benjamin Fagan, as executor, -etc., from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 30th day of July, 1914. ■
    
      Milton C. Palmer, for the appellant.
    
      William R. Condit, for the respondents.
   Thomas, J.:

The respondents, under the will of their grandfather, each owned one-twelfth interest in land subject to a power of sale given to the executor. The respondents by quitclaim deed conveyed their interest in the land to their uncle, who was a devisee of one-third thereof. Later the executor sold at auction the land for the purposes of division amongst the devisees and the uncle bought it. Upon closing, the executor allowed the purchaser, upon the price, his interest in the devise and also $700, which would have been payable to the respondents had they not made the conveyance of their interest in the land. Upon accounting the executor was surcharged with such $700. The respondents were enabled to convey subject to the execution of the power of sale, which was not affected by the alienation, as the respondents without the concurrence of the other devisees could not elect to take the land and so discharge the power of sale. (Mellen v. Mellen, 139 N. Y. 210.) After the execution of the power, the title to the land conveyed by respondents was transferred to the proceeds of sale (Mellen v. Mellen, supra) and the grantee was entitled to the same. (Reed v. Underhill, 12 Barb. 113; Matter of Bedell, 67 Misc. Rep. 24.) The power was to sell and to divide the proceeds, and the executor was justified in relying upon the recorded deed showing conveyance of the interests to the purchaser. The testimony shows that the respondents, after reading the deeds, executed them to enable their uncle to purchase the land. He may have betrayed their confidence, but the respondents, both adults and intelligent, should not be permitted, as against the executor, to deny the facts of transfer. There is no allegation of fraud in their application to the court or finding thereof. What, if any, remedy they may have against their uncle is quite another question and one that is foreign to this litigation.

The decree so far as it surcharges the executor should be reversed, but so far as it opens and corrects the account concerning the payment to the respondents it should be affirmed, without costs.

Jenks, P. J., Stapleton and Rich, JJ., concurred; Burr, J., not voting.

Decree of the Surrogate’s Court of Westchester county reversed in so far as it surcharges the executor, but in so far as it opens and corrects the account concerning the payment to the respondents, affirmed, without costs. Order to be settled before Mr. Justice Thomas.  