77 N.J. Eq. 142 | New York Court of Chancery | 1910
It is well settled that where a sale of land is directed by a will and the proceeds of the sale are to be paid to a beneficiary, whose interest is identical, whether he takes the land or the proceeds of its sale, and the executor has no duty to perform with respect to the land or the proceeds of the sale thereof other than to sell the land and pay over the proceeds to the person named, such person has the right to elect to take the land instead of the proceeds, and a court of equity will not allow such executor to sell the land against the wishes of such beneficiary. Gest v. Flock, 2 N. J. Eq. (1 Gr. Ch.) 108, 115; Scudder v. Stout, 10 N. J. Eq. (2 Slock.) 377, 381; Fluke v. Fluke, executor, 16 N. J. Eq. (1 C. E. Gr.) 478, 480; Howell v. Tomkins, 42 N. J. Eq. (16 Stew.) 305; 309, 310; Baldwin v. Vreeland, 43 N. J. Eq. (16 Stew.) 446, 448; Morse v. Hackensack Savings Bank, 47 N. J. Eq. (2 Dick.) 279, 284, 285; Huber v. Donoghue, 49 N. J. Eq. (4 Dick.) 125, 127. An instructive exemplification of the right of election upon the part of a beneficiary of the proceeds of sale of lands, and of the consequences which may flow from the exercise or failure to exercise the right, is found in Craig v. Leslie, 3 Wheat. 563, 576.
In the- present case complainant is made the sole legatee of all of the personal property of testator and of all of the proceeds of sale of all of testator’s real estate, after the debts of testator and expenses of the settlement of the estate are paid. With these charges removed complainant will be the sole person in interest. There can be no just reason assigned why complainant should not be permitted to either pay or adequately secure the payment of these charges and then exercise her election to take the land. This right of election on the part of a sole beneficiary is a substantial and beneficial right, and a court of equity should not permit it to be defeated by the existence of an obstacle which
I will award a further hearing at which defendant may apprise the court of the amount of cash or security which he may require to satisfy all possible needs of the estate for the payment of creditors and expenses of administration. When that is ascertained, an appropriate order will be made.