
    Mary Ann Keller et al., App’lts, v. Susan Ogsbury, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    1. Equity—Injunction—Waste.
    Daniel Ogsbury, by his will, directed his daughter Susan, who was named as executrix, to sell his real estate within five years and at such time and in such portions as seemed best to her, and i'rom the proceeds to pay $11,000, in legacies, with the possession, issues and profits in her until the sale. He first gave her a $5,000 legacy, and, among others, to these plaintiffs legacies of $700 and $500. Plaintiffs bring an action against their sister Susan, in her individual capacity, alleging that while in pas • session she is cutting down and selling off timber to the extent of $800, and ask an injunction to prevent waste. Reid, that these allegations were not enough to support a case for equitable interference. '
    2. Same—Will.
    Defendant was authorized to cut down and sell off the timber under the clause in the will which empowered her to sell the real estate in such portions or parcels as to her might seem best.
    Appeal from judgment of supreme court, general term, fourth department, affirming judgment dismissing the complaint.
    Action to enjoin defendant from cutting and selling timber upon lands which were a part of the estate of which defendant’s testator died possessed.
    
      Levi E. Brown, for app’lts; Chas. D. Wright, for resp’t.
    
      
       Affirming 19 N. Y. State Rep., 22.
    
   Gray, J.

The plaintiffs are two of the daughters and legatees of Daniel Ogsbury, who died leaving a will, by which he disposed of all of his estate. In the first place he directs his executrix, another daughter and the defendant in this action, to sell all his real estate, except a portion which is particularly devised, “ within five years from the date of his decease, and at such time within that period as may seem best to her,” and from the proceeds to pay certain after-mentioned legacies, aggregating in amount to about $11,000. The use and possession of the realty, until its sale, he then proceeds to give and bequeath to the defendant herself and also, meanwhile, all the rents, issues and profits of the same. By another, the seventh, clause he empowers his executrix to sell all or any of such realty in such portions, or parcels, or altogether, as she may think best or most profitable.

In the order prescribed by the will for the payment of the legacies out of the personalty and the proceeds of the sale of the realty, this defendant stands first as legatee in the sum of $5,000, while these plaintiffs come last, with legacies of $700 to the one and of $500 to the others. The defendant is also made the residuary legatee of the testator’s property.

The complaint of these plaintiffs is not against their sister as executrix, but in her individual capacity and is to the effect that, being in possession, she is cutting down and selling off the timber upon the real estate and has done so to the extent of some $800 in value; that the commission and continuance of such acts have reduced the value of the realty and rendered doubtful the sufficiency of the estate to pay to plaintiffs their legacies, and that the plaintiffs’ interests as tenants in common are threatened. Equitable relief is demanded by way of injunction.

The courts below have held that the facts stated did not constitute a cause of action against the defendant and in so deciding we think they were right. But the general term opinion proceeded on the basis that there was an equitable conversion of the realty into personalty, under the testamentary provisions, and that, therefore, the defendant took and held everything as personalty in her capacity as executrix. They had so held in their prior ruling in Ogsbury v. Ogsbury, 45 Hun, 388, but in that case, which involved a construction of this will, on appeal, we held otherwise, and denied relief to this defendant, who there, as executrix, sued for damages for a trespass upon the lands upon the theory of an equitable conversion of the realty at testator’s death. 115 N. Y., 290; 26 N. Y. State Rep., 351. That theory is unnecessary, however, to the demonstration of the insufficiency of this complaint. It is perfectly clear from the will, which is embod’ed in the complaint of the plaintiffs, that they have no interest in this estate except as legatees. What titular interest they, as heirs of testator, may have at law in the real estate, until its sale, is quite an unimportant consideration. They never could acquire the use and possession of it, for it, and all benefits therefrom, are given to the .defendant until the land is converted by her under the power conferred upon her as executrix. That power is one to be exercised, in her sole discretion, within the period named, of five years. The power to sell all of the real estate is only imperative as to the period within which the discretion to execute it must be exercised. The discretionary power, subsequently conferred in the will, to sell the real estate in portions, had this effect, namely, that upon the sale of any portion by the defendant, the proceeds became personal assets of the estate, for which she must account as executrix of the will.

Mow what do the allegations of this complaint show, except that the defendant has béen, and is, converting some of the realty into personalty, by cutting down and selling off the timber? But that she was authorized to do under the clause in the will which empowered her to sell the real estate in such portions or parcels, as to her might seem best. It is true that the plaintiffs allege that such acts are to their damage, by reducing the value of the farm and making its sufficiency in value to pay their legacies doubtful. But those allegations are not enough to support a case for equitable interference.

It is not shown that the value of the estate itself is impaired ; nor is it shown that the defendant is insolvent; or that she is acting illegally; or that she is unable to respond in her executorial capacity when duly called upon by those interested in the administration of the estate. On the contrary, it does appear that the plaintiffs are amply secured upon an accounting, inasmuch as for any wrongful act to the prejudice of the estate the defendant’s beneficial interest as legatee is large enough to cover the damage which may be shown as the result.

We think that on the face of the complaint no cause appears for equitable interference. The plaintiffs occupy simply the position of legatees under the will and, as such, can hold the defendant as executrix to a strict accountability for her administration,, with ample assurance against her illegal, or wasteful acts.

The judgment should be affirmed, with costs.

All concur.  