#### John Parker *et*al., Ex’rs, App’lts, *v.*Mark Lythgoe *et*al., Resp’ts.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

1. Restitution—Judgment.

Whether restitution shall he ordered on the vacation of a judgment is discretionary with the court

2. Same.

Where the effect of executing a writ of assistance issued upon a judgment in an action brought by executors for the construction of a will has been to permit the devisee of an undivided third of the real estate to collect the rents of not very productive property for himself and persons found to be the heirs of the testator, and there is great doubt whether another claimant will establish her right to any part thereof, and it appears that the executors are aged men of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied, *Held,*that a refusal to award restitution to the executors was a proper exercise of discretion.

*888Motion for restitution on vacation of judgment

For former reports of this case see 36 N. Y. State Rep., 564, 844, 981.

*Isaac N. Miller,*for pl’ffs; *P. & D. Mitchell,*for def ts.

Per Curiam.

Both the judgment and the addition made to it after its recovery have been vacated, and the authority under which the writ of assistance was issued has thereby been vacated. But the court is not on that account required to award restitution to the plaintiffs; whether it shall be ordered or not, has been made discretionary in the court. Code Civ. Pro., §§ 1005, 1292, 1323. And the object of rendering it dependent on discretion was to control its exercise by circumstances indicating the justice or propriety of it The effect of executing the writ in this instance' has been to permit the devisee of an undivided .third of the real estate to collect the rents of the tenants in possession of two parcels of not very productive, or valuable real estate, for the benefit of himself and three other persons who have been found by the court as the result of a trial, to be heirs of the testator. Another claimant may be proven to be a devisee of a third of the property, but that appears to be by no means certain. If she shall be, then a proportionate part of these rents will be payable to her. But from the ineffectual efforts which were heretofore made to discover whether that person is in fact living, and from the statements made in the deposition of the individual claiming to be that person, there is great room for doubting whether she will establish her right to any part of these rents.

The plaintiffs, who are the executors, are aged men, of doubtful responsibility, and the objects for which they were empowered by the will to collect the rents have been satisfied. They were given no right of possession or control for any other or different end. And as their authority has been exhausted, and there will be danger that the rents hereafter accruing will be lost if they are permitted to be received by them, there is a striking impropriety in the way of restoring them to the position in which they could continue to collect these rents. Indeed, it may well be doubted whether the court could allow that to be done, since their power of collection under the will has ceased to exist.

The devisee of one-third of the property is acting for himself and the heirs of the testator, and may consistently be entrusted with these rents on his own and their account. There will be much less danger of the rents being diverted from the persons ultimately entitled to their probable enjoyment by allowing their collection by this devisee. And, in this state of facts, it would not be a discreet or just exercise of this discretionary power of restitution to subject the property to the further control of these executors. The motion for restitution should, for these reasons, be denied, and an order should be made directing the devisee to deposit the rents over and above necessary expenditures for taxes, repairs and insurance and commissions for collection, with the chamberlain, subject to further order of this court

Yan Brunt, P. J., and Daniels, J., concur.