
    Henry B. Bolton et al., as Executors, etc., App’lts, v. Sarah L. Myers et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    1. Executors—Accounting—Estoppel.
    An objection by executors that they cannot account in the surrogate’s court for the proceeds of realty, does not estop them from afterwards claiming that such proceeds are personalty.
    2. Will—Conversion.
    Where the amount of debts exceeds the value of the personalty, a power of sale in the will to pay debts converts the realty into personalty.
    Appeal from a decree, determining the accounts of the executors.
    
      A. Oldrin Salter (Alex. Thain, of counsel), for app’lts; James R. Marvin, for resp’ts.
   Cullen, J.

This is an appeal from a decree of the surrogate of Westchester county determining the accounts of the appellants as executors. The substantial controversy is whether, under the will of the appellants’ testator, the power of sale given the executors may be exercised for the payment of debts. The will is as follows:

“In the name of God, amen. I, Ann Bolton, of town and ' county of Westchester and state of New York, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament. That is to say: First. After all my lawful debts are paid and discharged,, I give and bequeath to my daughter Catherine E. Bolton all my household furniture, beds and bedding, and my silver and plated ware, and all my .clothing. Secondly. I give, devise and bequeath to my son Henry B. Bolton the house and lot where he now resides, in the town of Westchester. Thirdly. I authorize and direct my executors to-invest the sum of fifteen hundred dollars on good security, and to-pay the interest and income to the trustees of the Methodist Episcopal Church at Bronxdale, in the town and county of Westchester, for the support of said church; and I also authorize and direct my executors, in case I should not do so before my death, to expend a reasonable sum in erecting a monument and putting in order the family cemetery at Woodlawn; and I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever, in their judgment, they may deem for the best interest of my estate, and to give good and sufficient deed or deeds or conveyancy of the same. Fourthly. I give, devise and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children Henry B. Bolton, Thomas Bolton, John W. Bolton, Mary A. Littlewood, Sarah L. Myers, Emily B. Horris and Catherine E. Bolton, and my adopted son, William H. Birchall, to be divided equally between them, share and share alike. Likewise, I make and constitute and appoint my sons Henry B. Bolton and Thomas Bolton to be executors of this my last will and testament, hereby overlooking all former wills by me made.
“In witness whereof I have hereunto subscribed my name and affixed seal the sixth day of April, in the year of our Lord one thousand eight hundred and eighty.
“Ann Bolton.
“Witness present:
“ Henry H. Bolton.
“ Sarah I. Bolton.”

The preliminary point made by the appellants, that the contestants having once insisted that the executors could not bring the-fund realized by the sale of the realty into the surrogate’s court, and there account for it, and in consequence thereof, the item having been withdrawn from the account, were estopped from afterwards compelling the executors to account for the fund in that court, is plainly without merit. The contestants were wrong-in their original contention, and it was so held in an action in this court for partition, They have received no part of the fund, and there is therefore nothing to estop them from proceeding now in. accordance with what has been held to be the law, even against their contention. The learned surrogate has held that the fund should be distributed as real estate, and that it was not applicable to the debts of the testator. The question is not free from doubt, but we think that this conclusion was erroneous. The case is very similar to that of In re Gantert, 136 N. Y. 106; 48 St. Rep. 889. In both cases the question is not whether the debts are charged on the real estate, but whether the power of sale is given for the purpose of paying debts. In this respect the cases differ from that of. In re City of Rochester, 110 N. Y. 159; 17 St. Rep. 146. It is found by the surrogate that the testator left less than $3,000 in personalty, and that her debts amounted to nearly $9,000. The-will was made about two years before the testator’s death. There is nothing to show that there was any change in her pecuniary circumstances from the date of the will to the time of her decease. By the will she gives $1,500 to be invested for the benefit of the church, and also directs the expenditure of a reasonable sum for erecting a monument and putting in order the family cemetery. Immediately, following these directions, and in the same clause of the will, is the grant of the power of sale. We should assume that the testator knew her own circumstances, and intended that both the debts and legacies should be paid; that with such knowledge she foresaw that her personalty was insufficient for either purpose, and that, to raise the necessary fund, some of the real estate must be sold. This conclusion is strengthened when we find the power of sale directly following the legacies. The learned .surrogate distinguished the present case from the Gantert Case by what he deemed a fatal difference, that in this will there is found a specific devise to the son. The surrogate overestimated the effect of this difference. In the opinion in the Gantert Case, Judge Maynard says:

“If the testator had specifically devised designated portions of his realty, or impressed them with separate trusts, the presumption is very strong, and usually controlling, that he did not intend' that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because, in order to sustain the structure of the will, there must be implied a direction not to sell for such a purpose.”

But the devise of a single piece out of her large realty does not necessarily fall.within the rule stated by the learned judge. If the effect of the power would naturally be to break up the general scheme of disposition of the realty, the case would fall within the principle of In re McComb, 117 N. Y. 378; 27 St. Rep. 269, .and the power of sale be held limited to a sale for the benefit of the devisees. Here there was a large residuary estate, ample to discharge any debt or legacy, without recourse to the specific devise. The devise of the residuary estate is immediate, and there would seem no reason why a power of sale should be given to be exercised for the benefit of those devisees. We are of opinion that in the will before us the power of sale was to be exercised for the payment of both debts and legacies.

The decree of the surrogate should be reversed, and the case remitted for further proceedings in accordance with this opinion.

All concur.  