In re the Final Account of Wallish

252 A.D. 862, 299 N.Y.S. 483, 1937 N.Y. App. Div. LEXIS 6587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1937
• Status: Published

Opinion

Final order settling the accounts of a committee of an incompetent and surcharging him with one-half of the proceeds of the sale of certain real property, title to which was held by the committee and the incompetent (husband and wife) as tenants by the entirety, affirmed, with fifty dollars costs and disbursements. The judicial sale of the property was not and is not the equivalent of a consent by the incompetent spouse to a termination of the estate by the entirety and the transforming of it into a tenancy in common. The proceeds continue to be subject to the incidents of an estate by the entirety. (Civ. Prac. Act, § 1402; Matter of Board of Street Opening, 89 Hun, 525, 526; Walrath V. Abbott, 75 id. 445, 451.) Apart from the precise statutory provision providing that there shall be no change in the nature of the estate pursuant to a judicial sale, the cases relied upon by the committee proceed on the premise of the actual giving of a consent to the termination of the estate by the entirety by both spouses. A sale of property under a judicial order in which an incompetent has an interest is not the equivalent of such a consent. Hagarty, Carswell, Johnston, Adel and Taylor, JJ., concur.