Citation Numbers: 97 Misc. 2d 878
Judges: Buschmann
Filed Date: 1/2/1979
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
This is a motion by John J. Courtney, as conservator of the property of Emily Szymanski, for an order disposing of the net proceeds of a court-ordered sale of certain real property previously owned by decedent Stanley Szymanski and his wife, Emily Szymanski, as tenants by the entirety.
By order dated August 10, 1977, this court authorized and directed the above-named conservator to sell the Szymanski residence located in Flushing, New York, in accordance with
The issue is whether the proceeds of a forced sale of realty held as a tenancy by the entirety retain this particular estate characteristic. In a similar case involving a husband and his incompetent wife owning real property as tenants by the entirety, the court held: "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 to a tenancy in common. The proceeds continue to be subject to the incidents of an estate by the entirety.” (Matter of Wallish, 252 App Div 862.)
The statute relied upon in that decision was section 1402 of the Civil Practice Act, later renumbered 1399 and from which section 1755 of the Real Property Actions and Proceedings Law derived.
This statute deems the proceeds of a sale of real property of an infant or incompetent as "property of the same nature as the estate or interest sold.” (Real Property Actions and Proceedings Law, § 1755.) Therefore, inasmuch as the property herein was an estate by the entirety, the conservatee and her husband would each be seized of the whole of the proceeds derived therefrom and not of any separate part. Furthermore, just as the death of one spouse results in the whole of the estate by the entirety surviving to the other (Steltz v Shreck,
Accordingly, the conservator is directed to hold the net proceeds now in the account as assets of the conservator of Emily Szymanski.