#### Matter of the estate of Sarah M. Davids, deceased.

*(Surrogate’s Court, of Westchester County,*

*Filed November,*1886.)

1. Sale of lands of decedent — Petition foe, undeb Code Civ. Peo. , § 2752.

Where executors presented a petition with a view to mortgaging, leasing or selling the lands of the testatrix for the payment of her debts, the petition containing all the matters required by Code Civ. Pro., § 2752, and it was ascertained from the will that although the debts and funeral expenses were not charged upon the real estate, yet the will authorizing the sale of the real estate, with the consent of the husband, it was *held,*that the executor being clothed with the power to sell, and it not appearing affirmatively upon the face of the petition that the consent of the husband was withheld, under the existing circumstances it would be an injustice to the estate to ■grant the petition.

*3582. Same — Under power conferred by *wile*— Disposition *of*proceeds —Laws op 1837, chap. 460, § 75.

Under the Laws of-1837, chap. 460, § 75, which appears to he still in force and unrepealed, the proceeds of a sale under the power bestowed by the will, could be brought into court and distributed in the same way as if derived from a sale according to the petition.

Peter Davids, wbo was tbe husband of the deceased and a legatee under her will, recently hiedan application for a citation requiring Peter T. Davids and Charles *W.*Johnston, the executors of said will, to show cause why they should not render an account of their proceedings. The citation was duly issued and served, and during the pendency of that matter, the executors have presented a petition with a view to the mortgaging, leasing or selling the real estate of the testatrix for the payment of her debts, by which it appears that the debts and funeral expenses are about $236, and the assets $>25. The will clothed the executors with a power to sell the real estate during the life-time of the husband, on his consenting thereto in writing.

*Edgar K.*Brown, for petitioners.

*Coffin*S.

All the matters required by section 2752 of the Code, to be set forth in the petition, appear to be properly stated. Section 2754 provides that “where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts and funeral expenses, or either, cannot be paid, without resorting (“ doubtless, under the provisions of that Title) “ to the real property, he must issue a citation according to the prayer of the petition.” By looking into the will, it is ascertained that, while the testatrix directs the payment of her debts and funeral expenses, in the usual form, the real estate devised by her is not expressly charged with their payment, and hence, it is claimed, that it may be disposed of in order to pay them, as prescribed by section 2749.

The petition is not required to state the provisions of the will, in this respect, so that it would seem the fact mast be ascertained by the surrogate from other sources. In consulting the will, therefore, the fact is ascertained that the debts and funeral expenses are not so charged, as is above stated. But it is also found that the will contains these provisions:

“ *Fourth.*I give devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of what kind and nature soever, to my executors hereinafter named, in trust, to collect the rents, interest and income arising therefrom, and apply the same to the support of my husband, Peter Davids, for and during the term of his natural life, and should the interest, rents and income from my estate, be insufficient for the comfortable support and maintenance of my said husband, then *359and in such, case I direct my said executors to apply any or all of my estate, if necessary, to his support and maintenance.

*Fifth.*I hereby authorize and empower my said executors, hereinafter named, if in their judgement it is best, to sell and dispose of any part, or all of my real estate, and give good and sufficient deeds of conveyance therefor, providing, however, such real estate shall not be sold during the life-time of my said husband, without his consent in writing.”

Omitting from present consideration the restriction to the power, as contained in the fifth clause, the question would arise whether the court should order a sale under the fifth Title of the eighteenth chapter of the Code, on the application of the executors, where the debts and funeral expenses were not expressly charged upon the real estate devised and where the executors themselves were clothed with authority to sell. It would seem to be unjust, unreasonable and improper for the court to permit such a proceeding, as it could benefit no one, and would be burthening the estate with expenses-, to the injury of those interested. Why should it confer a power with which the executors have already been clothed by the will ? If they were to sell under that power, they could bring the proceeds into court, under the provisions of chap. 460, § 75, of the Laws of 1837, which appears to be unrepealed and in force; and they would be distributed as if they were derived from such a sale as the petitioners here seek. These considerations warrant the interpretation of the 2754th section tobe that, *e converso,*if it appear to the surrogate that the debts and funeral expenses can be paid without resorting to the provisions of that title, he shall not issue a triation according to the prayer of the petition.

As to the restriction on the power to sell contained in the will, it does not appear that the husband has refused, or is unwilling, to give his written consent to such sale. That fact should appear affirmatively before any citation can be issued. But, from what has occurred before me, I understand he is not only willing, but anxious, that the real estate in question, should be sold.

In the case of *Russell*v. *Russell,*36 N. Y., 581, to which I am referred by the counsel for the petitioner, the action was ejectment. The executrix was, by the will, clothed with power to sell. Under that power she conveyed some real estate to a creditor of the testator in satisfaction of his claim, when the assets were sufficient to pay all claims. It was held, by a divided court (Davies, Ch. J. and Gbover, J., dissenting) that the power was not well executed, and that the conveyance was void. It was also held that the debts should have been discharged by means of the personal estate, and that the real estate could only be applied to that purpose, upon an order of the surrogate to sell, after the personal estate had been exhausted. Some of the *dicta*of the learned *360judge, who delivered the prevailing opinion in that case, would induce a belief that he had overlooked the provisions of the 75th section, above referred to. However that may be, the case was unlike' this, in that there, the assets were sufficient to pay all claims, while here, they are very insufficient. There the transaction was not deemed a sale, as contemplated by the testator, but rather the extinguishing of a debt, while here an actual sale would be in strict accordance with the power conferred. The proceeds could then be brought into court, and, under the provisions of the last named section, the debts and funeral expenses be paid, and the surplus be handed over to the executors, who are the devisees in trust, to enable them to fulfil the duties imposed upon them by the will.

As the power to sell does not carry with it a power to mortgage, and as the petitioners might, in this proceeding, ask for authority to mortgage, it would seem that even such authority should not be given in this case. The petition shows that there are now two mortgages upon the premises devised, given by the testatrix amounting together to six hundred dollars, on which some interest is now due. If a new one should be authorized so far as can be seen, some of the funds realized would be required to be kept in hand to pay the interest to accrue thereon. The rents do not appear to have been sufficient to pay taxes, repairs, insurance and the interest on the subsisting mortgages. Hence, it would not be wise to put a further burthen upon it, when the resources of the estate, outside of the realty, amount to nothing. The estate might thus be made bankrupt, or the interest of all concerned be seriously jeopardized.

It strikes me, under all the circumstances, that the most prudent course for the executors to pursue, is to exercise the power to sell conferred by the will and thus save something for the beneficiaries. They will then be in a position to- comply, with the provision of the will which directs them, in case the rents, etc., are insufficient for the comfortable support and maintenance of the husband, to apply any or all of her estate to that purpose. The loving intention of the testatrix is thus clearly manifested; and the advanced age, feeble health and destitute condition of the surviving husband, are appeals for speedy action, which should not be disregarded.

Application denied.