In re the Estate of Sherburne

95 A.D.2d 859, 464 N.Y.S.2d 531, 1983 N.Y. App. Div. LEXIS 18810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1983
• Status: Published

Opinion

— In a proceeding, inter alla, to restrain the executors of the estate of Pearl Sherburne from selling the real property of the decedent, the executors appeal, as limited by their brief, from stated portions of an order of the Surrogate’s Court, Queens County (Laurino, S.), dated April 20, 1982, which, inter alla, (1) restrained the executors from selling or otherwise disposing of the real property without an order of the Surrogate’s Court; and (2) ordered the executors to render and file a final account. Order affirmed, insofar as appealed from, without costs or disbursements. EPTL 11-1.1 (subd [b], par [5], cl [B]) is to the effect that a fiduciary does not have authority to sell property of an estate or trust that was “specifically disposed of” by will or testamentary trust. Here the decedent stated in her will that except as to bequests of items of cash, jewelry and furs, “everything that I possess including my home” is left to my four grandchildren. Assuming, arguendo, that a gift of “everything I own including” constitutes a nonspecific disposition of the item or items stated in the succeeding words (cf. 65 NY Jur, Wills, § 788, p 59), the fact that the grandchildren elected to take the home in kind bars the executors from thereafter executing a contract of sale (see Trask v Sturges, 170 NY 482; cf. Matter ofFello, 88 AD2d 600, affd 58 NY2d 999). Under the circumstances the requirement that the executors render and file a final account was an appropriate exercise of discretion (see SCPA 2205). Lazer, J. P., Thompson, Gulotta and Bracken, JJ., concur.