The testatrix, Mary Gh P. Binney, by the seventh clause of her will, declared .as follows: “I wish my property in Madison avenue, known as No. 17, to be sold, and the proceeds of such sale to be distributed among my heirs according to law.”
No direction is given in words as to the person who shall exercise the power of sale.
But as the power is one authorized by the Bevised Statutes, it would be the duty of this court to designate a trustee to execute the will of the testatrix, provided that it could be seen from the will itself that the execution of the power without such designation would utterly fail.
But by the terms of the seventh clause of the will the realty is converted into personalty.
A sale is necessary, as its proceeds, to be realized from a sale, and not the land itself, is given to the heirs. No other clause, of the will directly touches the house and lot on Madison avenue. There are legacies given by other clauses of the will, but they are not charged upon the premises in question, and are not payable from those proceeds. The proceeds to be realized upon the sale of the Madison avenue house and lot, with the disposition of which amongst the heirs the executor is chargeable, are assets.
The distribution of those assets belong to the administration of the personal estate. It must be held, therefore, that there is an implied power in the executor to sell this house and lot for the purpose of distribution (Meakings agt. Cromwell, 5 N. Y., 136).
The decree to be made in this action will be settled on notice.
Note. — By the judgment afterwards entered in this action, the referee, under whose direction the sale was ordered to be made, was directed to pay the proceeds of the sale to the plaintiff as executor, &c., on his giving security to be approved by the court for the faithful discharge of his duties under the will, and judgment of this court, and' for accounting for such moneys when required by the surrogate. The plaintiff was a non-resident of this state. — [Ed.