
    Henry Clay Ditmas, Resp't, v. Berend Baas, Ex'r, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    1. Will—Construction.
    A testator devised certain land to defendant for ten years with the privilege of purchasing it for a certain sum. Held, upon his failing to purchase at the end of such time, the land descended to the heirs at law of the testator.
    
      2. Same—Deed.
    One who acquires the interest of the heirs to such property has a right to possession of the deed to the testator, and the executor has no right to retain the same.
    Appeal from judgment m favor of plaintiff.
    The action was brought to obtain the immediate delivery to-the plaintiff of a certain deed of real property owned by plaintiff, which had never been recorded, which was in the possession of the defendant, and which he refused to record or deliver to plaintiff, and to recover $500 as damages for the unlawful withholding. The court refused to allow any amount whatever to plaintiff as damages for such unlawful withholding.
    On September 1, 1869, William Bonthrup, the defendant’s testator, purchased a piece of real estate from one Catharine Cropsey and Hiram Cropsoy, and received a deed of said property duly executed by the Cropseys. It is that deed which is the basis of this suit. Mr. Bonthrup never put that deed on record, but died on May 20, 1877, with the deed still unrecorded in his possession. Bonthrup left a will, of which the defendant Baas was executor, and as such executor he came into possession of this unrecorded deed. The will was duly probated and letters testamentary were issued to the defendant Baas.
    This will gave to Baas the rent and use of the property described in said deed for ten years, and it also gave him the privilege, after the ten years had elapsed, of purchasing the property for $6,000, but in case he elected not to purchase the property, then it was bequeathed to his (Bonthrup’s) lawful heirs, to be divided share and share alike. Baas used the property and received the rents for ten years, as given to him under the will, but at the expiration of the ten years he notified the heirs of said Bonthrup that he did not desire to avail himself of the privilege given him by the will, of purchasing the property, that he would not be liable for its rent or occupation, nor responsible for its care.
    On February 18, 1879, said Baas finally settled his accounts as^ executor as to the personal estate of Bonthrup.
    The heirs of Bonthrup then sold the property described in the deed in question to the plaintiff in this action.
    The defendant claimed that by the true construction of the said will the real estate should have been sold and converted into money by the defendant and distributed by him as personal property to the heirs of Bonthrup, and that he (the defendant) be allowed expenses and commissions; that the plaintiff took no title, but that the property belongs to the defendant as executor. In other words, that he, as executor, had a power of sale.
    The defendant also sets up a counterclaim of $700 for rent of the premises and a counterclaim of $1,000 as damages alleged to' have been sustained by reason of a failure of the plaintiff to purchase the same from the defendant.
    
      Fred. W. Solis, for resp’t;
    .ñera/. G. Sitchings, for app’h
   Pratt, J.

We think the court below correctly construed the will, and that upon the election of Baas not to purchase, the land descended to the heirs-at-law of the testator.

As purchaser of the estate from the heirs-at-law, Ditmas had a right to the possession of the deed to his predecessor in the title.

The judgment must, therefore, be affirmed, but as the executor has mistaken his legal rights, the affirmance may be without costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  