
    Matter of the Judicial Settlement of the Accounts of John J. S. Mansfield et al., as Executors, etc., of Elizabeth F. Storm, Deceased.
    (Surrogate’s Court—Westchester County,
    November, 1894.)
    Although there is an equitable conversion of the real estate into legal assets, no part of the proceeds can be applied to the payment of debts, so long as the personalty is sufficient for that purpose.
    Taxes which were fixed at the time of the decedent’s death constitute a debt, which is payable from the personalty.
    Where the real estate is directed to be sold and the proceeds divided among persons other than those to whom the personalty is bequeathed, taxes which accrue subsequent to the decedent’s death are chargeable to the proceeds of sale, although the will directs the executors to pay insurance and repairs until the sale takes place, but does not refer to taxes. In such case the expense of the sale is chargeable against the proceeds thereof.
    Proceeding for judicial settlement of the accounts of executors.
    The testatrix, by her will, directed her executors to erect to her memory a certain style of tombstone or monument, and charged the expense to her personal estate. All the rest of her personal estate she bequeathed to her nephew and niece, John J. S. Mansfield and Elizabeth F. Mansfield. She then provided as follows : “ I order and direct my executors to sell all my real estate at such times and in such manner as they shall deem most advantageous to my estate, and to make, execute and deliver to the purchaser and purchasers thereof good and sufficient deed and deeds of conveyance for the same, and to divide and distribute the proceeds of such sales ” among persons other than said Mansfields, and then directed that until, such sale be made the executors rent the same, and out of the rents received pay insurance and repairs and distribute the residue among those to whom the proceeds of sale were given. The real estate was sold for $25,000 since this proceeding was commenced, and a supplemental account was filed showing that the income from it as rents was about $782.33. The taxes paid amounted to $495.87. The expenses attending the management and sale of the real estate amount to $861.65. These several amounts are claimed by executor Storm as chargeable against the personal estate, which aggregated about $27,000. Executor Mansfield objects that they are not so chargeable. The latter also claims that taxes amounting to $124.50 and paid by him should be paid out of the proceeds of the sale of the real estate. To this the executor Storm objects.
    
      M. G. Hart, for executor Storm.
    
      Pemsen & Parsons, for executor Mansfield.
   Coffin, S.

The executors have filed separate accounts, it being alleged that Mr. Storm had sole charge of the real estate and Mr. Mansfield of the personal. The debts, etc., were directed to be paid out of the personal estate, and if the taxes paid by Mansfield were fixed at the death of the testatrix, then they were a debt, the payment of which was devolved upon the personal estate by law. The will was admitted to probate in May, 1892, and these taxes were paid in June following, from which it may be fairly inferred that they were due at the testatrix’ death. In another phase of this matter before me it was intimated that, although there was an equitable conversion of the real estate into legal assets, no part of the proceeds could be applied to the payment of debts, so long as the personalty, of which the testatrix died possessed, was sufficient for that purpose, and it is now so held.

It is claimed that the taxes on the real estate, accruing since the death of the testatrix, should also be deemed a charge against the personal estate. The claim is urged mainly upon the ground that the testatrix directed that the insurance and repairs were to be paid out of the rents of the realty, saying nothing about the taxes,, and that, therefore, she intended that they should be paid out of the personalty. It may have been a mere omission, or she might have anticipated a sale before the accruing of any taxes. Suppose she had, instead, omitted, the word “ repairs,” or have omitted also insurance and repairs, could it be justly claimed that all these items should be paid by persons who had no interest in real estate whatever % There was no period fixed when the realty should be sold, and it may have remained unconverted for years to come, and if the personalty were liable for taxes to'the end, then there could have been no accounting and final distribution of it until such sale. It is clearly equitable that the taxes should be charged against the proceeds of sale of the realty. And it seems equally clear that the expenses of such sale should also be so charged.

As the testatrix separated her estate into two parts, bequeathing her personalty to one class of persons, and disposing of her realty to another class, and as one executor has solely administered the former, and the other the latter, and as they render separate accounts of each respectively, each' class shall bear the expenses of the accounting in regard to the fund in which it is interested, and the executors shall have commissions on the fund each represents.

Decreed accordingly.  