
    In the Matter of the Estate of Bertha Brandstein, Deceased.
    Surrogate’s Court, Kings County,
    July 30, 1959.
    
      
      Peter Stowe for petitioner.
    
      Davicl M. Paley for Martin Brandt and another, respondents.
   Maximilian Moss, S.

This is an application by the coexecutrix to transfer from the Supreme Court a partition action, for the purpose of combining it with a pending accounting proceeding. Under the will the residuary estate, which includes two parcels of improved realty of unequal values, is directed to be divided into four equal parts, two of which parts are given to the executrix and one part each to her brother and sister. The will gives to the executors the power to sell any property. The realty does not lend itself to a physical division among the parties according to their respective rights, hence a sale by the executors under their power of sale might well effectuate in a practical way the rights of the parties (Fiddler v. Fiddler, 110 N. Y. S. 2d 815). Should the fiduciaries sell the estate realty, the proceeds thereof shall be accounted for by the filing in this court of a supplemental account. The application is denied.

Settle order on notice.  