
    In the Matter of the Judicial Settlement of the Account of William S. P. Prentice and Theron G. Strong, as Sole Surviving Executors and Trustees, etc., of John H. Prentice, Deceased. Anna P. Terry, Appellant; William S. P. Prentice and Theron G. Strong, as Sole Surviving Executors, etc., of John H. Prentice, Deceased, Respondents.
    
      Mnal accounting of executors—commissions allowed by a decree are not affected by a lach of funds nor by a failure to retain money to pay them — time of execution of a power of sale for purposes of distribution — commissions on proceeds — conveyance by beneficiaries in confirmation of that of executors — commissions on moneys retained for taxes, ete.
    
    A decree, made, under section 2742 of the Code of Civil Procedure, upon the judicial settlement of the accounts of executors is conclusive as to the amount of commissions allowed the executors for services rendered, although there may not he at the time before the court sufficient property to provide for the immediate payment of the commissions; nor is the failure of the executors to-retain sufficient moneys equivalent to a gift by them of their commissions.
    A testator, by his will, gave and bequeathed all his residuary -estate to Ms executors “ in trust, to convert the same into money at such time as in their discretion may seem most advantageous,” and directed them to pay certain annuities out of the income, and, after the death of his wife,- to “ divide, distribute and pay over ” all the residue of such estate to certain designated persons, the testator in the same clause providing, “and I hereby give and bequeath said residuary estate accordingly,” and further directing the executors in the meantime “to apply all surplus or undisposed of income, rents and profits ” that might come-into their bands prior to the time provided for such distribution in a manner-specified, and, by a subsequent clause, he gave such executors full power to-sell, mortgage or lease the real estate at such times as they might deem proper.
    
      Held, -that the power of sale thus vested in the executors was unqualified as to-time and did not cease upon the death of the widow, but authorized them to-sell the realty thereafter for the purposes of distribution and to receive commissions on the proceeds of such sale.
    Where a sale is made by the executor's, a conveyance made on the same day by . the beneficiaries under the will of the same realty thus sold by the-executors, in which conveyance the premises are stated to he the same as those-sold by the executors, “ which sale aud conveyance is hereby intended to he in all things confirmed -by. the parties hereto of the first part,” does not show that the sale was not made by the executors nor deprive them of commissions upon the property sold.
    Executors required, by the terms of the will, to distribute a trust fund created: thereby, upon the death of the testator’s widow, should, in the absence of evidence that they have unreasonably delayed the sale of the realty constituting part of it, be allowed commissions oh funds of the estate retained and disbursed by them in the payment of taxes and other expenses incurred while the realty thus remained unsold.
    Appeal by Anna P. Terry, one of the heirs and legatees under the will of John H. Prentice, deceased, and a party to the above proceeding, from a decree of the Siu-rogate’s Court of the.county of Kings, entered in said Surrogate’s Court on the 14th day of December, 1896, settling the accounts of his executors, except from so much thereof as purports to allot to each executor the proportional share of the commissions, by said decree awarded.
    This appeal was transferred from the second department to the first department.
    Letters testamentary upon the estate of John H. Prentice were issued in March, 1881. There have been three accountings by the executors. The second included the period from July 1, 1883, to April 1, 1893; and the third the period from April 1, 1893, to May 1, 1895. The second decree, entered January 27, 1894, awarded the executors $34,792.38 for commissions. No appeal was taken therefrom. In September, 1895, a motion was made in behalf of the appellant to- reopen the decree! It was denied, no no order being entered or appeal taken. The third decree awarded a further sum of $45,609.83 for commissions. The appellant duly filed objections to the account,- which were referred to a referee, and by him overruled. • From the decree subsequently entered this appeal is taken.
    
      Edmund R. Terry and Eliphalet B. Terry, for the appellant.
    
      Thereon G. Strong, for the respondents.
   Barrett, J.:

The correctness of the award of commissions made by the decree of 1894 is no longer open. To that decree the appellant was a party, and it stands in all respects unreversed and unmodified. The Code distinctly provides (§ 2742, subd. 1) that -such a decree is conclusive as to the correctness of the amounts allowed to the accounting party for services rendered. The appellant’s counsel is in error in believing that this decree was rendered without jurisdiction, because there was not then before the court sufficient property to admit of linmedíate payment of the commissions. This did not prevent the court from determining the amount due for services already performed. A binding adjudication upon this question was quite independent of the amount of assets then in the hands of the executors. Nor did the executors make a gift of their commissions to the oestuis que trust because they did not insist upon retaining sufficient funds to pay themselves at once. All that they thus surrendered was the present use of the money.

The principal question under the decree of 1896 relates to the allowance of commissions upon the amount received from the sale of the Prentice stores and cottages. This question depends upon the proper construction of the testator’s will. By its 3d clause he devises and bequeaths all the residuary estate, real and personal, to his executors, “ in trust' to convert the same into money at such time as in their discretion may seem most advantageous.” Three, annuities are directed to be paid out of the income. Upon the death of his wife (should she die after January 1,1890, as actually happened), the testator directs the executors to “ divide, distribute and pay overall said rest', residue and remainder of my estate * * * to and among such of my children as shall be living and the issue of any deceased child, share and share alike.” By the following clause the executors are directed “to apply all surplus or undisposed of income, rents and profits that may come info their hands prior to'the time provided for the distribution- of my residuary estate,” in the manner specified. By the 9th clause full power is given the executors to sell, mortgage or lease the real estate at such times as they may deem proper. Mrs. Prentice died in February, 1893. The store property, which formed part of the residuary estate, .was then undisposed of. It was sold in January, 1895, the executors giving one deed and the beneficiaries another. The question to be determined is whether the executors gave their deed and received the proceeds in the exercise of a power conferred by the will.

That the will gave the executors power to sell at any time during the life of Mrs. Prentice is admitted. It is said, however, that the power ceased with her life. We are unable to concur in this view. Whether or not there was an absolute direction to sell, which would have effected an equitable conversion, there was at least- a broad authority so to do, unqualified as to time. That authority was conferred upon the executors as an aid and incident to the discharge throughout of their executorial duties. The appellant, however, errs, in believing that the executors had no functions to perforin except such as related to the distribution óf the income during the life of Mrs. Prentice. Another and hardly less, important duty was the distribution of" the principal at the termination of the trust. At that time they were directed to “divide, distribute and pay over” the estate to the beneficiaries: It is significant that the word “ convey,” or some similar word, was not used in this connection, and that, in the same clause, the testator added : “And I hereby gi/oe cmd beqtieathsaid residuary estate accordingly.” The language used indicates an intent that the beneficiaries shall take the estate in the form of personalty, and affords strong ground for an argument that there was-an equitable conversion. But this question we need not consider.. What is clear, and decisive is that this clause, taken with the broad and unqualified power to sell, shows beyond doubt that the executors had authority to convey the real estate after Mrs. Prentice’s-death and distribute the proceeds. Power to sell for purposes of distribution is well recognized. It may exist although the fee of the lauds has passed to devisees under the will. (Crittenden v. Fairchild, 41 N. Y. 289; Manier v. Phelps, 15 Abb. N. C. 123.) The case last cited is very like the- present. There was a gift of the income of the estate to the testator’s wife, and at her death a devise and bequest of the property to certain individuals. A general power of sale was given the executors .as well as authority to invest and reinvest the income of the-estate. It was held by Martin, J., in a well-considered opinion, that the power to sell was distinct from the authority to invest; that it was a general power, not limited to income-producing purposes; and that it survived the death of the wife for purposes of distribution.

It follows that the executors, in selling the store property and. receiving the proceeds, were performing a lawful trust duty, andaré as much entitled to commissions upon the amount -involved as upon any other sums passing through their hands. It is said that the sale was not made by the executors, but by the beneficiaries, under the residuary clause of the will. This is not the proper construction of the transaction. The negotiations for the sale were-carried on by the executors. Upon receiving a suitable offer, they obtained from the beneficiaries a written consent to accept said offer on our behalf, and to make, execute and dieliver the necessary instruments of conveyance of the same.” Soon after thé executors gave their deed to the purchaser. Upon the same day the beneficiaries also executed a deed. In it the premises were described as <c the same premises sold and conveyed to the party hereto of the second part hereto by (the executors), * "x" * and which ■ sale and conveyance is hereby intended to be in all things confirmed by the parties hereto of the first part, who accordingly execute these presents.” Both parties evidently considered that the sale was made by the executors under the power, for the executors received the purchase price and distributed it accordingly.

It is further contended that there was error in the allowance to the executors of commissions upon sums expended in the payment of mortgages upon the real estate, and also upon the full price of the unincumbered land. The question of law which the appellant here presents need not be considered for the reason that the facts . appearing upon the record are insufficient to raise it. We cannot tell from the record whether commissions were granted by that decree on the sums used to extinguish the mortgages. The schedules are not in evidence, and the decree and the portion of the accounts introduced do not disclose that any of the sums on which commis: sions were allowed were used to pay mortgages. It certainly is not for us to infer either that the decree of 1894 allowed commissions upon an improper basis, or that the decree appealed from is erroneous in computing commissions upon a basis proper in itself but rendered improper by previous allowances.

lastly, it is said that the executors were not entitled to commissions upon the income of the estate received and paid out after the death of. Mrs. Prentice. Upon her death it was, doubtless, their duty to distribute the personal property among the residuary legatees without unnecessary delay. On the other hand, it was manifestly impossible for them at once to divest themselves of all the personalty. They had a reasonable time within which to execute the power of sale of the real estate. (Hancox v. Meeker, 95 N. Y. 528.) An immediate sale would have resulted in serious loss, and the circumstances show that the executors exercised their power wisely. But while the property remained in their hands there were taxes and numerous other expenses to be paid, which required the retention of large sums of money. In so far as the executors were thus compelled to hold and disburse the moneys of the estate, we can perceive no reason why they are not entitled to commissions for so doing. There is nothing to show that they have retained .possession of the estate in an unreasonable manner. In fact the great bulk of the residuary principal has been distributed.

Hone of the other points discussed require consideration. The decree appealed from should, therefore, be affirmed, with costs.

Yan Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

. Decree affirmed, with costs. •  