In re the Judicial Settlement of the Account of Green , 63 Misc. 638 ( 1909 )

Ketcham, S.

The will, after numerous legacies of money, contains the following:

“ I do hereby direct, authorize and empower my executor hereinafter named and appointed, to sell and convey, for such price as he shall deem proper, all that certain lot of land with the building and improvements thereon, situate, lying and being in the borough of Brooklyn, in the city of Hew York, and known and designated as and by the number Three hundred and fifty-one (351) Pulaski street, the premises wherein I now reside, and the proceeds of such sale I direct to be placed in and become part of my residuary estate.”

There is no residuary disposition in the will. The decedent left no descendants, but her husband survives her.

The executor has sold the real estate mentioned in the will, and in his final account includes the proceeds of such sale, together with the rents collected by him between the death of the testatrix and the time of sale.

The attempted power of sale was void, and the sale was ineffectual to divest the heirs of the fee which vested in them at the death of the decedent. Sweeney v. Warren, 127 N. Y. 426.

The proceeds of sale have not come into the hands of the executor as a part of the fund under administration. He holds them simply as one who, without warrant, has sold the property of another and is ready to account for its price.

An executor can account for proceeds of the sale of lands not devised to him in trust only when he has sold them pursuant to a power of sale contained in the will; and it is not conceivable that the results of a sale for which there is no valid warrant in the will became any part of the fund intrusted to him as executor.

The proceeds of a sale which the executor as such had no right to make, and which he has made only in his individual capacity, cannot be the subject of accounting in this court. The executor, in collecting the rents, acted without his office, and holds the avails only as an individual.

ISTo question is made of the practical fidelity of the executor ; but, so far as he has been faithful to an idle and empty provision in the will, he has intruded upon the rights of the heirs and cannot account to them in this proceeding as to either the proceeds of the land or its rents.

The residue of the personalty is claimed by the next of kin, but it belongs to the husband. Where a wife leaves a husband and no descendants, there is nothing in the Statute of Distributions to disturb the common law under which the husband takes absolutely all unbequeathed assets.

The account should be stated to conform to these views.

Decreed accordingly.