(dissenting). Section 123 of the Decedent Estate Law does not presume to affect the well-settled rule that personalty passes to an administrator by operation of law, and that debts of the estate, ordinarily, are to be satisfied therefrom; whereas realty vests in the heirs and passes directly to them at the time of death of the intestate. The power conferred upon an administrator to take possession of real property may not be arbitrarily exercised. It may be exercised, ordinarily, only when recourse to the realty is necessary in order to satisfy debts of the estate. Taking possession of the realty by an administrator without substantial basis therefor is a futile and meaningless act, depriving the owner of enjoyment thereof without cause. The agreed statement of facts contains nothing to warrant the administratrix in taking possession of the realty in the case at bar, but to the contrary, it is stated that “ the total assets, exclusive of any and all claims of the administratrix against William C. Limberg, exceed the total liabilities, including all possible administration expenses.”
I dissent and vote to direct judgment in favor of defendant.
Taylor, J., concurs.
On agreed statement of facts, judgment directed for plaintiff for the sum of $405, without costs.