#### Frank McGarry, Plaintiff, *v.*James McMahon, Defendant.

First Department,

March 6, 1908.

Executors and administrators — direction to executor to sell lands — power of administrator with, will annexed — equitable conversion.

A direction that executors sell real estate to pay specific bequests and distribute the balance to residuary legatees is not discretionary, but works an equitable conversion of the lands, and the direction inay be carried out by an administrator with the will annexed.

A title to lands acquired on such sale by the administrator with the will annexed is marketable;

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

*J. J.*Kramer, for the plaintiff.

*Louis E. Felix,*for the defendant.

Houghton, J.:

The plaintiff agreed to convey to the defendant certain real property and the defendant refused to accept the conveyance on the ground that the title was not marketable, in that the administrator with the will annexed of Catherine Striegel, deceased, a former owner, had no power to convey.

The stipulated facts show that Catherine Striegel. died seized of the property in question in January, 189.4, leaving a last will and testament which was duly admitted to probate.' An executor and executrix were named in the will. The executor died prior to the testatrix, and the • executrix qualified and partially’ administered the estate,, when she also died. Thereupon an administrator with the. will annexed was duly appointed, who, for the purpose of paying legacies, sold and conveyed the real property, the title to which is now questioned, it being, the only property out of vhich they could be paid.

The will, after making provision for the payment of debts and funeral expenses, made thirteen specific bequests amounting to *608$4,200, to pay which there was hut $2,000 óf. personalty. The. clause of the will directing conveyance by the executors for the purpose of distribution and payment of legacies previously given, is as follows:

. *“ Twelfth.*The balance, if any, I request and direct my executors to divide and distribute in equal shares among Margaret' Brown, John Simon and Mary lire us el above named and all of the City, County and State of Mew York, and Barbara Merle in Europe. I hereby appoint William Lanzer and Mrs. Elise Schloeder both of the City, County and State of Mew York, to be executors of this-my last will and testament; hereby revoking all former wills and I.do hereby authorize, and empower my executors William Lanzer and Mrs. Elise Schloeder, to sell all my real-estate to pay the above bequests.” "

Power to sell the real estate for the purpose of paying the legacies provided by the will, and the distribution of any balance amongst the residuary legatees, clearly passed to- the administrator with the will annexed. Section 2613 of the Code of Civil -Procedure provides that where letters of administration with the will annexed are granted, the will of the deceased shall be observéd and" performed; and the administrators in carrying out such will- have the rights and powers and are subject to the same duties- as though they had been named as executors therein, There wras no discretion given to the executors named. They were directed to sell the real property for the purpose of paying the bequests of the will and of dividing and distributing the remainder amongst the residuary legatees. There was an equitable conversion of the, land of which the testatrix might die seized, into money for the purpose of payment of legacies and distribution. Where there is such an equitable conversion and a direct command to sell without any personal discretion confided in the persons named as executors/ an administrator with the will- annexed has power to convey and' his deed in proper form conveys good title. *(Mott*v. Ackerman, 92 N. Y. 539; *Carpenter*v. Bonner, 26 App. Div. 462; *Clifford v. Morrell,*22 id. 470.)

The plaintiff obtained good title through his deed from the ' administrator with the will annexed, and the defendant’s refusal *to*eomplete'his contract was unjustified.

*609.Judgment should be directed for plaintiff requiring the defendant to perform liis contract, but under the stipulation, without costs.

Patterson, P. J., McLaughlin, Laugiilin and Scott, JJ., concurred.

Judgment ordered for plaintiff, without costs. Settle order on notice.