
    Edward Clayton et al., Plaintiffs, v. John Kingston, Individually, etc., Defendant.
    (Supreme Court, Bronx Special Term for Trials,
    June, 1921.)
    Powers — when personal and not in trust — legacies — executors.
    A power vested in executors to sell real estate devised to the husband of the testatrix, subject to the payment of legacies, at such times and in such manner as they may deem advantageous, is personal, confidential and discretionary and there being no trust to sell the property for the payment of legacies, which must be paid by the devisee, an action to have a lien impressed upon the realty to the extent of the legacies will not lie.
    Action to impress a lien upon real estate for payment of legacies.
    R. J. Reese, for plaintiffs.
    D. Ashworth, for defendant.
   Martin, J.

The plaintiffs, who are legatees under the will of the wife of John Kingston, seek to have a lien impressed upon the realty to the extent of their respective legacies, and to have the real estate sold to satisfy them. The realty was devised to the defendant, John Kingston, absolutely, subject to the payment of these legacies. The power of sale provides that the executors, only one of whom, the husband, qualified, are authorized and empowered to sell the real estate at such times and in such manner as they deem most advantageous. Such power of sale is personal, confidential, and discretionary, and was not conferred for the purpose of conversion. There is consequently no trust to sell the property in order to pay the legacies. It was clearly the intent of the testatrix that they should be paid by her husband, who would then hold the realty absolutely free from charges; or, if not so paid, then to be paid out of the proceeds from the realty when sold. The charges of waste and mismanagement were not proved. Judgment for defendant, dismissing the complaint upon the merits.

Ordered accordingly.  