169 N.E. 616 | NY | 1930
The testator left an estate of over $2,500,000 in value. By his will he bequeathed $1,500 to care for cemetery plots, and then established eight trusts in a total of $255,000, the income to be paid to the beneficiaries named during their lives and upon the termination of the several trusts the principal to be paid to the New York Foundation, the appellant. The entire residuary estate was bequeathed to the appellant. Three hundred and *383 twenty-six thousand five hundred dollars of the estate in value consisted of two parcels of real property. By the fifteenth clause of the will it was provided: "15th. For the purpose of the payment of legacies, and for the distribution and settlement of my estate, my real estate shall be deemed to be personal property." Upon the accounting before the Surrogate it was held that the executors were entitled to commissions upon the value of the real estate. The appellant objected to the amount of said commissions and appealed to the Appellate Division, where the decree of the Surrogate was unanimously affirmed, and permission granted to appeal to this court.
The question here is whether the executors are entitled to commissions upon the value of the real property left by the testator. The will did not convey to the executors title to the real property or grant to them power to sell it. The testator left sufficient personal property to pay all of his debts and legacies, so that the necessity of selling the real property never arose and the executors never exercised the power conferred upon them to convert the real property into personalty.
Section 285 of the Surrogate's Court Act reads as follows: "The value of any real or personal property * * * received, distributed or delivered, shall be considered as money in making computation of commissions." The executors have not "received, distributed or delivered" the real property in question. Title to it vested in the appellant by operation of law without any act on the part of the executors. The will vested them with the implied power to sell for the purpose of paying legacies and the distribution of the estate, but as the personal property was sufficient for all of those purposes the power was never exercised and title vested without any action whatever on their part. In the absence of the clause in question in the will, the granting of a power to sell which was never exercised would not entitle the executors to *384
commissions on the value of the real property. (Matter ofWanninger,
Even though the clause in question constituted an equitable conversion the executors have not "received, distributed or delivered" the property either as real property or in a converted form. They performed no act in relation to it under the authority vested in them by the terms of the will, and title to the real property never vested in them. (Barber v. Terry,
In that case the will of James J. Belden provided as follows: "I charge payment of any balance [legacies] upon my real estate and direct that no distinction be made between real and personal property in the execution of *385
this will, and the settlement and distribution of my estate." A contest arose in regard to the payment of commissions upon the value of the real property. The Appellate Division (in
In that case the language was substantially the same as *386 in the case at bar. The will read, "the settlement and distribution of my estate." In the case at bar the will reads, "the distribution and settlement of my estate," and in both instances the real property is to be deemed personal property. InMatter of Barker (supra) this court clearly stated its disagreement with the Appellate Division upon that question in order that the affirmance by this court might not be construed as an approval of the reasoning of the Appellate Division.
The respondents argue in their brief that that decision holds only that a provision for equitable conversion cannot in and of itself constitute a ground for granting commissions, but that the case does not hold that a direction for equitable conversion contained in a will prevents the consideration of other language as showing the testator's intention that his executors should receive commissions upon the value of real estate, that is, that it is a question of construction separate and aside from any question of equitable conversion.
In the case at bar, however, the only basis for the granting of commissions upon the value of the real estate is the very provision which works an equitable conversion of real estate. In view of the decision in Matter of Barker, the order of the Appellate Division and the decree of the Surrogate's Court should be reversed, with costs to the appellant payable out of the estate, and the matter remitted to the Surrogate's Court with instructions to modify the decree in accordance with the directions of this court.
POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur; CARDOZO, Ch. J., not sitting.
Ordered accordingly. *387