
    Ann Eliza Wilcox, App’lt, v. Charles J. Quimby et al., Individually and as Ex’rs, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Executors and administrators — Power oe sale — When court will ENFORCE.
    In a proceeding to remove executors on the ground of conversion of personal property and failure to sell real estate, no wrongful conduct on their part was shown, but it appeared that the direction of the will to convert was absolute, the time of sale only being left to the executors' discretion; that more than twenty years had elapsed, during the last eight of which the life tenant received no income; that the property was increasing in value, and since the commencement of the proceeding a contract for its sale had been entered into. Held, that the life tenant had a right to insist upon a sale after such a lapse of time; that under the circumstances the court should compel the executors to exercise their power of sale, and that the complaint was improperly dismissed.
    Appeal from judgment of special term, dismissing the complaint.
    
      James Flynn, for app’lt; M. M. Silliman, for resp’ts.
   Cullen, J.

—This action is brought to remove the defendants as executors, and to have a trustee appointed in their place, and for an accounting. The court at special term at the close of the evidence dismissed the complaint.

The complaint charges the defendants with having converted the testator’s personal property and the rents of the real property and with failing to account. It also charges misconduct on their part in failing to sell the realty. As to the personal property, the evidence fails to show any conversion by the defendants, and, on the contrary, does show that they fully accounted for it before the surrogate. Since the decree in the surrogate’s court no formal account of the rents has been rendered, and the testimony of the defendant Quimby is that they have been consumed in maintaining the property and in repaying to him a balance due on the surrogate’s decree. These facts sufficiently answer the charges of the complaint in these respects.

But the serious question arises as to the failure of the defendants to sell the real estate. This realty consists of a farm of about 170 acres lying partly in the village of White Plains. As a farm, which presumably is the only purpose for which it could be leased, it has rented at from $400 to $600 per year, from which lent must be deducted the taxes and the expense of maintaining the property. The plaintiff, the equitable life tenant of an undivided. third, has received nothing of income from the property for eight years. As suburban property the farm would sell for a large sum. The plaintiff’s husband testified that in 1870 he offered for it $30,000. This is denied by the defendant Quimby.

Be this as it may, now over twenty years has elapsed since the testator's death, and no sale had until pending this action a contract of sale has been made. It does not appear that this contract has as yet been carried into effect. The direction of the will to convert is absolute; the time of sale only is left to the discretion of the executors. The executor testified that he has always been ready to sell at a fair price, and that he has had the property in the hands of real estate brokers, but without offers, until after the commencement of the suit. Mo attempt has been made to dispose of the property at public sale. The sale of the farm now effected will, if carried out, be at the rate of $500 an acre.

We think, on these facts, the complaint should not have been dismissed. There has been, doubtless, no misconduct on the part of the executors in the sense of any moral wrong, and, therefore, there was no ground for their removal. It is also true that the delay in the sale has resulted in a great appreciation in the value of the property. But there must come some time at which the direction of the will to sell should be carried into effect. The life tenants, the primary object of the testator’s bounty, should not be -called upon to continuously sacrifice their interests to the benefit of remaindermen. We think that the plaintiff, after waiting twenty years, cpuld properly insist upon a sale at whatever price the property would bring in the market. That the court can compel an executor to exercise a discretionary power of sale is unquestioned. Haight v. Brisbin, 96 N. Y., 132.

At the time plaintiff instituted her action she was entitled to relief so far as she sought to enforce a sale, and the action was properly brought. That a sale has been made pending the suit should not defeat her action and impose upon her the burden of costs. The present contract of sale is still unconsummated, and may fail, in which case the plaintiff will be entitled to another sale.

The judgment appealed from should be reversed, to the extent that the defendants be decreed forthwith to sell the testator’s realty, and that after or upon such sale the defendants account for the rents and profits since the decree of the surrogate. In other respects the judgment should be affirmed, except that the costs of all parties, both at the trial and on appeal, should be paid out of the fund.

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