
    In the Matter of the Application of William Rathyen, Respondent, to Revoke Letters of Administration, with Will Annexed, Issued to John H. Smith and Horatio J. Sharrett on the Goods, Chattels and Credits of John Rathyen, Deceased. John H. Smith and Horatio J. Sharrett, Individually and as Administrators with the Will Annexed, etc., of John Rathyen, Deceased, Appellants.
    Second Department,
    November 28, 1906.
    Will — unexecuted power of sale —merger of power in fee descending to remaindermen — letters with will annexed revoked.
    A testator left his property to his widow for life; on her death the remainder to be converted 'into money and the proceeds divided" equally among three children. The widow and two, of the children were appointed executors. All three executors died without selling a certain portion of the realty.
    Letters with the will annexed were subsequently granted on petition alleging that “ the imperative power of sale,under the testator’s will not having been exercised by the executors, the estate was unadministered to that extent.” On an application to revoke said letters with will annexed,
    
      Held, that upon the death of the widow and two of the remaindermen, who died intestate, unmarried and without descendants, their interest vested in the surviving remainderman, not as donee of the power of sale, but absolutely in fee, and that the beneficial power of sale was merged in such fee, and thus the failure to execute the beneficial power of sale did not render the estate unadministered; That whether the parties petitioning for letters with the will annexed moved with honest mistake or evil intent was immaterial;
    That, under the circumstances, there was a false suggestion of- a material fact made to the surrogate within the meaning of the statute, and that the letters should be revoked;
    That the surrogate, as incidéntal to the power to determine the truth or validity of the allegations of the petition, had jurisdiction to determine the questions of fact and whether, as a matter of law, the estate was unadministered.
    Appeal by John II. Smith and another, individually and as administrators, etc., from a decree of the Surrogate’s Court of the county of Richmond, entered in said Surrogate’s Court on the 20th day of June, 1906.
    
      S. F. Rawson, for the appellants.
    
      Frederick W. Clifford [Henry H. Sawyer with him on the brief], for the respondent.
   Jenks, J.:

The appeal is from a decree of the Surrogate’s Court of Richmond county revoking letters c. t. a. issued upon, the estate of John Rathyen, upon the ground that they were obtained upon the false suggestion to the surrogate that there remained unadministered certain personal property to the value of $4,000. Rathyen died in 1889, testate. He gave the estate to his widow for her life. After devise of certain specific realty, subject to said life estate, he directed that “ upon the death of. my said wife all the rest, residue and remainder of my property be sold and converted into money and that the proceeds of such sales be divided equally among my three children — John Fred’k Rathyen, Henry Rathyen and Annie Smith —: and I hereby give and bequeath the same to them.” He appointed as executors his wife and his children John and Anna. The findings, unexcepted to, establish the following facts: Three children, John, Anna and Henry, survived the testator ; John and Anna received letters testamentary and qualified. Henry died on March 30, 1898, intestate, leaving no widow, and leaving as his only heirs and next of kin his mother,, his brother John and his sister Anna. The widow died on November 9, 1898, intestate, leaving as her only heirs and next of kin John and Anna. Anna died in 1900 and John in 1904. Certain realty of the testator was not sold by the said executors John and Anna, but was held by them intact until they died, and has not been sold or otherwise disposed of since. On January 31, 1905, the letters o. t. a. were issued to Smith, a son of Anna, and to Sharrett, who qualified and are acting. The ground of the petition for the letters was that “ the imperative power of sale in John Rathyen’s will not having been exercised by his1 executrix and executor at the time of the widow’s death or at , any. other time his estate, is unadministered to that extent.” Then, under exception, it was found that there was no property of the deceased left unadministered, and that the letters c. t. a. were obtained from the surrogate by “false suggestion to him of the material fact that there remained unadministered certain personal property of the said John Rathyen, deceased, of the aforesaid value of” $4,000.

The interest of Henry upon the death of his mother (his only other heir and next of kin save John and Anna) intestate and leav^ ing John and Anna as her sole heirs and next of kin, vested- in John and Anna,-not as donees of the power, but- absolutely or in fee.. (Hetzel v. Barber, 69 N. Y. 1, 7.) 'John and Anna were-entitled to the other thirds respectively, absolutely or in fee.- I think, then, that the beneficial power of sale in them was merged in their fee. (Jennings v. Conboy, 73 N. Y. 230, 237; Hetzel v. Barber, supra; Reeves Real Prop. § 652; Fowler Real Prop. Law [2d ed.], 390.)

In Forman v. Marsh (11 N. Y. 544, 549) the court say: “ It is a general rule that where equity impresses.a different quality upon property from that which it has in fact, such impression ceases whenever. the possession of the estate, and the right to it in each. quality "meet in the same person; that is, when there is - no other person than- ,the one who has the actual possession, who has an equitable interest in retaining the fictitious character of the estate. Thus when- real uses.' have b,een impressed upon personal property, and the personal fund and the uses come together in the same person, the uses are considered as discharged and merged, for there is no person- to call -for their application. .'(Pulteney v. Darlington, 1 Bro. C. C. 203; Wheldale v. Partridge, 8 Ves. 228; Rashleigh v. Master; 1 Ves. Jun. 201; Leigh & Dalzell on Eq. Cas. 174.)” I think, then, that the omission to execute this beneficial power of salé did not render the estate imadministered.

. I think that there was a false suggestion of a material fact made to the. surrogate, within the. intendment of the statute. (See Code Civ. Proc. § 2685, subd. 4.) The petition does not contain- any statement that was affirmatively false, but it omitted material facts which woul,d have made it apparent to the surrogate that in view of the deaths, successions, and the identity of the donees, executors, beneficiaries, heirs or next of kin, the power of sale had been absorbed as matter of law. It is the falseness of the suggestion aloné that moves.the court to revocation, in that there was no ground for its act. And hence it is immaterial whether the petitioner moved in honest mistaking or with -evil intent. (Kerr v. Kerr, 41 N. Y. 272, 276.) ' ' ■ ’

As the surrogate had the power to determine th'e truth or falsity. of the allegations of the petition, I think that incidental to such power he had power to determine the questions of fact and of law whether under the will and the circumstances the estate was unadministered. (Kerr v. Kerr, supra, 277.)

I advise affirmance of the decree, without costs.

Hirschberg, P. J., Hooker, Gaynor and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Richmond county affirmed, without costs. 
      
      Eq. Conv.— [Rep.
     