In re the Estate of Travis

New York Surrogate's Court

In re the Estate of Travis

1 Gibb. Surr. 161, 10 Misc. 298, 31 N.Y.S. 686, 64 N.Y. St. Rep. 310

DecidedNovember 15, 1894

StatusPublished

This text of 1 Gibb. Surr. 161 (In re the Estate of Travis) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Travis, 1 Gibb. Surr. 161, 10 Misc. 298, 31 N.Y.S. 686, 64 N.Y. St. Rep. 310 (N.Y. Super. Ct. 1894).

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Opinion

O’oefin, S.

It is well settled that a surrogate has no power, in a case like this, to compel the executors to- sell the real estate; [162]*162but he may, in a proper case, decree payment of a legacy, and thus, perhaps, indirectly and legitimately, coerce a sale, where the strictly personal property is insufficient for the purpose. The legacies in question are due, and the legatees are entitled to them; and the decree prayed for should be granted, if there is u money or other personal property ” which may be so applied without seriously affecting the rights of others entitled to priority or equality of payment. There can be no doubt that the will of the testator effected an equitable conversion of his land into money (Gilb. Lex. Pr. 243), and it must be treated as money. See, also, 2 Story Eq. Jur. p. 98, sec. 190. It seems to be conceded that the estate is of the value of $40', 00 O', all of which' must be treated as money in the hands of the executors, while the amount of debts and legacies is about $38',000, thus demonstrating that the decree for payment may be granted without seriously affecting the rights of any others intereste4 in the estate. These grandchildren are minors, and justice requires that they should be paid. A portion of the real estate was not taken by the city of New York, and still remains unsold by the executors. Precisely when the city became the owner of the other portion does not appear, but my impression is that a considerable period intervened between the time when the executors assumed the duties of their trust and the obtaining of the title by the city, during which the whole of the realty might have been 'sold. However this may be, the legacies should be paid.

Decreed accordingly.

Note. — Affirmed, 85 Hun, 420.

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O’oefin, S.

It is well settled that a surrogate has no power, in a case like this, to compel the executors to- sell the real estate; [162]*162but he may, in a proper case, decree payment of a legacy, and thus, perhaps, indirectly and legitimately, coerce a sale, where the strictly personal property is insufficient for the purpose. The legacies in question are due, and the legatees are entitled to them; and the decree prayed for should be granted, if there is u money or other personal property ” which may be so applied without seriously affecting the rights of others entitled to priority or equality of payment. There can be no doubt that the will of the testator effected an equitable conversion of his land into money (Gilb. Lex. Pr. 243), and it must be treated as money. See, also, 2 Story Eq. Jur. p. 98, sec. 190. It seems to be conceded that the estate is of the value of $40', 00 O', all of which' must be treated as money in the hands of the executors, while the amount of debts and legacies is about $38',000, thus demonstrating that the decree for payment may be granted without seriously affecting the rights of any others intereste4 in the estate. These grandchildren are minors, and justice requires that they should be paid. A portion of the real estate was not taken by the city of New York, and still remains unsold by the executors. Precisely when the city became the owner of the other portion does not appear, but my impression is that a considerable period intervened between the time when the executors assumed the duties of their trust and the obtaining of the title by the city, during which the whole of the realty might have been 'sold. However this may be, the legacies should be paid.

Decreed accordingly.

Note. — Affirmed, 85 Hun, 420.

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Bluebook (online)

1 Gibb. Surr. 161, 10 Misc. 298, 31 N.Y.S. 686, 64 N.Y. St. Rep. 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-travis-nysurct-1894.

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