
    In the Matter of the Application of Ladislas Karge.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    Decedent’s estates—Sale of seal estate to pay debts—Power of sale.
    Testator by his will, “after my lawful debts and 1 hose of my brother are paid,” gave his estate to his executors and directed them to convert it into money and distribute the proceeds in the manner prescribed in the ' will. Seld, that there was no power of sale for the payment of debts contained in the will, and that the surrogate properly ordered a sale for the payment of debts.
    Appeal by the executors of the estate of Michael J. Duffy, from an order of the surrogate granting leave to sell real estate for the payment of debts.
    The following is the opinion of the surrogate:
   Ransom, S.

Decedent died in February, 1891, leaving a will, which was duly admitted to probate, and letters testamentary issued to John B. Johnson and Eliza A. McAtamany. The personal property of decedent is insufficient to pay his debts. The respondent executrix opposes the application on the ground that the will worked an equitable conversion of the real estate as of the time of decedent’s death, the proceeds of which can be applied to the payment of his debts. The primary question is whether by the terms of the will the debts were charged upon the realty. The will provides: “ First. After my lawful debts and those of my brother * * * are paid, I give, devise and bequeath all my estate to my executors hereinafter named, and direct them to convert the same into moneyas soon after my death as possible, giving and granting unto my said executors full power and authority to sell and dispose of the same at public or private sale as they may deem best. And out of the proceeds thereof it is my will, and I hereby direct * * * ” Then follow five provisions directing the executors to dispose of the proceeds arising from the sale of the real estate. The provision in the will upon which the claim that the debts are charged upon the real estate is based, is “After my lawful debts * * are paid.” These words, in themselves, do not show an intention to charge the realty with the payment thereof. Matter of City of Rochester, 110 N. Y., 159; 17 St. Rep., 146; Clift v. Moses, 116 N.Y., 144; 26 St. Rep., 405; Matter of Bingham, 127 N. Y., 296; 38 St. Rep., 765. The case of Greenland v. Waddell 116 N. Y, 234; 26 St. Rep., 667, does not apply to the question under consideration. That case does not pretend to dispose of the rights of creditors to maintain proceedings in a surrogate’s court to sell lands of testator for the payment of debts. The court says in the same report, in the case of Clift v. Moses, supra, p. 155, that “ debts and legacies stand upon a different basis, and, consequently, words that would indicate an intention to charge one upon real estate might not convey any such intention as to the other.” The second point is whether the will worked such an equitable conversion so that at the time of decedent’s death there was no realty against which •creditors could proceed under the statute. §§ 2749-2750, Code Civil Procedure. The only conversion that could be worked is by the power of sale, and for the purpose only of applying the proceeds to the setting up of the trusts and the payment of legacies, and not for general purposes; and the proceeds could not be applied to the payment of debts, but only to the purposes specified in the will. Matter of McComb, 117 N. Y., 378 ; 27 St. Rep., 259; Sweeney v. Warren, 127 N. Y, 426; 40 St. Rep., 304. Application granted.

G. Bliss, for app’lt; F. A. Card, for resp’t.

Per Curiam.

Although we think that it is probable that the right to maintain this appeal does not exist, yet, in view of the conclusion at which we have arrived and the fact that it involves the settlement of an estate, we have concluded to pass upon the merits.

In determining the right of the surrogate to make the order applealed from resort must be had to the will of Michael Duffy for the purpose of ascertaining whether or not the same contains a general power of sale, or whether the real estate was expressly charged with the payment of debts, or whether the property is subject to a valid power of sale for the payment of debts. If such power existed or was given to the executors, then resort could not be had to a proceeding of this kind to sell the real estate for the payment of debts.

We think, however, that not only is no such power as suggested given to the executors, but that, on the contrary, the right of the executors to sell for any purpose except those specified in the will (which does not include a right to sell for the purpose of paying debts), is expressly excluded. The testator having limited the executors’ power to sell to a time subsequent to the happening of the event of the payment of the debts of himself and his- brother, the construction sought for would result in the court giving a power of sale prior to the time fixed by the testator.

The power of sale is not a mere naked power, but the whole real estate, after the payment of these debts, is devised to the executors for the purpose of sale and distribution among the legatees-mentioned in the will.

The order should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Andrews, JJ., concur.  