
    Matter of the Judicial Settlement of the Accounts of George K. Day, as Executor of the Last Will and Testament of Edward Parsons Day, Deceased.
    
      (Surrogate's Court, Kings County,
    
    
      February, 1912.)
    Wills—Executors and Administrators—Administration of Estate and Execution of Powers and Trusts and Compensation Therefor—Particular Terms of Doubtful Meaning—Power to “ Sell ” to Pay Legacies.
    Where a will giving the executor power to sell testator’s real estate contains legacies in excess of the gross personal estate, the surrogate is without jurisdiction to declare that the legacies were by the testator charged upon the real estate.
    Until the executor has brought the proceeds of a sale of the real estate into court for distribution, no adjudication can determine whether lands authorized to be sold by the executor under the will are to be resorted to for the payment of legacies.
    Proceeding upon the judicial settlement of the account of on executor.
    
      James R. Speers, for executor.
    Frank M. Wells, for Annie Perry et al.
    Henry Escher, Jr., special guardian for Roberts infants.
    Miller, King, Lane & Trafford, for F. B. Torrey, as executor, etc., of E. W. Day, deceased.
    George W. MacKenzie, for E. D. Buner et al.
   Ketcham, S.

The surrogate undoubtedly has power to construe a will, whenever such construction is necessary to the making of a decree in a proceeding pending before him for the judicial settlement of the accounts of an executor. But this is all the power which he has for the purposes of the present case. Unless the interpretation is essential to the decree distributing the specific fund for which the executor accounts or is accountable, the court may not interpret. Code Civ. Pro., § 2472, subd. 3, last paragraph; § 2481, subd. 11.

Here the accountant discloses personal assets and claims credit for disbursements. The will under which he accounts contains legacies in excess of the gross personal estate. It is contended that these legacies were by the testator made chargeable upon lands of which he died seized and that the court should so declare upon analysis of the will in the light of the circumstances of its execution.

To construe this will in this proceeding, the court would either be content with an empty and academic opinion or would assume to direct the executor to exercise the power of sale which the will contains and by its aid provide for the payment of the legacies.

Either course seems unlawful. One would have no force; the other a force which the court has no right to exert.

Unless an executor holding a power of sale has executed the same and has brought the proceeds thereof into court for distribution, there is no warrant for an adjudication as to whether or not lands embraced in the power are to be resorted to for the payment of legacies. Bevan v. Cooper, 72 N. Y. 317.

The account will be settled accordingly.

Decreed accordingly.  