McDonald v. O'Hara

13 Misc. 527, 68 N.Y. St. Rep. 735

• Court: The Superior Court of New York City
• Decided: July 15, 1895
• Status: Published

Opinion

The following is the opinion filed at Special Term:

McAdam, J.

The will, by conferring on the executors a mandatory power of sale, converted the land into money. The parties in interest having elected to take the land as such, have worked an equitable'reconversion; it is again land, and the title is in them in fee. Oases cited in McDonald v. O'Hara, 9 Mise. Rep. 686; aff’d, 144 N. T. 566.

The infant, by its testamentary guardian and its guardian ad, liiem, with the sanction of the court, hereby expressed, has joined with the adults in the election, so as to make it the united as well as the binding act of all. The reconversion is complete and the power of .sale extinguished.

William J. Lacey, for appellant. Jmms Kearney, for respondent.

If the executor (as he claims) has incurred expenses in reference to the land prior to the reconversion and he cannot obtain reimbursement from the estate in his hands, he may plead the facts, that the court may in its final decree protect by equitable lien or otherwise any just demand he may have. Those who seek equity must do equity.

In the meantime the injunction prayed for, restraining further interference with the land by the executor, will be granted. Ho costs.

Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements, upon the opinion filed by the learned judge at Special Term.

Present: Fbeedman and Gildebsleeve, JJ.

Order affirmed, with ten dollars costs and disbursements.