In re the Accounting of Setel

Order unanimously reversed conditionally in accordance with memorandum, but if appellant does not comply with the conditions, order affirmed, without costs. Memorandum: Upon the facts it was proper for the Surrogate to direct that the stock be sold. In view of the testator’s intent as expressed in his will, it was error for the Surrogate to deny unconditionally appellant’s motion to reopen the-order .of sale. Appellant should be given a reasonable time, which under the exigent circumstances we fix as until 5:00 p.m. on December 10, 1973, in which to file in the office of the Surrogate his irrevocable offer to purchase the stock for an amount not less than $200,000, supported by a deposit of cash or New York bank draft in such amount, or its equivalent in the discretion of the Surrogate, plus his duly executed waiver of executor’s commissions in this estate; and the order denying the motion to reopen the order of sale should be reversed upon condition that appellant file his offer in compliance with the foregoing, otherwise the orders should be affirmed. In the event that appellant does comply with such conditions, the Surrogate should proceed with due expedition to give an opportunity to any other bidder or bidders including the appellant to purchase the stock at private sale and thereupon grant an order directing the sale thereof to the highest bidder. (Order entered Dec. 3, 1973.) (Appeal from order of Erie County Surrogate directing sale of stock and dismissing objections to account.) Present — Del Vecchio, J. P., Witmer, Moule, Cardamone and Henry, JJ.