
    Matter of the Estate of Bernard Travis, Deceased.
    (Surrogate’s Court—Westchester County,
    November, 1894.)
    Where the will effected a conversion of the realty, and there has been delay in making a sale thereof, the surrogate may, where the amount of the entire estate is sufficient to pay all debts and legacies, direct the payment of a past-due legacy to a minor, and thus indirectly coerce a sale.
    Application for payment of interest on legacies.
    The deceased left a last will and testament, disposing of an estate estimated to be of the value of $40,000. On the real estate were mortgages to the amount of $12,800. He directed his executors, among whom was Edward M. L. Ehlers, to sell his real estate, and out of the proceeds to pay to Estella Travis a legacy of $12,000; to Margaret Travis, $5,000, and to Augusta, LeBoy and Bobert Travis, infant grandchildren of testator, $1,000 each, to be invested, the income of which was to belong to said infants, or to be applied to their support. A judgment has been obtained against the executors for about $5,000, an appeal from which has been taken and is still pending. The real estate lay in and about Katonah, and since the probate of the will the title to a portion of it has vested in the city of Rew York for water purposes, the value of which has not yet been determined, but proceedings to that end are pending. Charles E. Travis, the general guardian of the infants, now makes application for an order directing the executors to pay the interest on the legacies so bequeathed to them.
    
      Pratt & Thompson, for the application.
    
      Joseph O. Oreme, opposed.
   Coffin, S.

It is well settled that a surrogate has no power, in a case like this, to compel the executors to sell the real estate; but he may, in a proper case, decree payment of a legacy, and thus, perhaps, indirectly and legitimately coerce a sale where the strictly personal property is insufficient for the purpose. The legacies in question are due, and the legatees are entitled to them, and the decree prayed for should be granted if there is “ money or other personal property ” which may be so applied without seriously affecting the rights of others entitled to priority or equality of payment.

There can be no doubt that the will of the testator effected an equitable conversion of his land into money (Gilb. Lex PrEetoria, 243), and it must be treated as money. See, also, 2 Story’s Eq. Juris. 98, § 790. It seems to be conceded that the estate is of the value of $40,000, all of which must be treated as money in the hands of the executors, while the amount of debts and legacies is about $38,000, thus demonstrating that the decree for payment may be granted without seriously affecting the rights of any others interested in the estate. These grandchildren are minors and justice requires that they should be paid. A portion of the real estate was not taken by the city of Hew York and still remains unsold by the executors. Precisely when the city became the owner of the other portion does not appear, but my impression is that a considerable period intervened between the time when the executors assumed the duties of their trust and the obtaining of the title by the city, during which the whole of the realty might have been sold. However this may be, the legacies should be paid.

Decreed accordingly.  