The testator, a man of considerable wealth, left his residuary estate in eight shares to his children and the widow and children of a deceased child. By the ninth clause of his will he provided: "If any of the residuary legatees desire to purchase any of the personal property or real estate *Page 236 owned by me they may do so at its current market price at the time of my death, as valued by my executors and trustees, the survivors or survivor of them, and the same shall be charged against their respective shares or interests as money paid to them by the executors and trustees, the survivors or survivor of them in accordance with the provisions of this will."
The practical utility of this provision seems very doubtful. Similar provisions are not infrequently found in wills, but in such cases the privilege accorded of taking part of the estate at a valuation is limited to particular legatees or to a third party, such as a surviving partner, on whom for some reason the testator wishes to confer the privilege. But a general privilege to all legatees to take a part of the estate at its value at the time of the testator's decease, regardless of subsequent changes in value, would seem to subserve no useful purpose. If the property appreciated in value all the legatees would naturally desire to avail themselves of the privilege. While if it depreciated, none would wish it. The will directs the conversion of all the real estate into personalty, and for that purpose confers upon the executors the broadest powers of sale. Therefore, if any particular legatee was desirous of obtaining any property he could obtain it on a sale by the executor if he were willing to pay more than others. But whatever we may think of the practical value of this testamentary direction it is entirely legal and we must give effect to it.
Shortly after the death of the testator his executors, probably for the purpose of determining the inheritance tax, estimated the value of a store at Broadway, in the city of New York, at $260,000. Subsequently one of the legatees, the appellant in this court, made his demand upon the executors for the conveyance to him of that property, the price to be charged to his share of the estate. This was refused. In this proceeding, which is for an accounting by the executors, he renewed his demand and asked the surrogate to decree that the executors comply therewith. Thereupon the other *Page 237 legatees also demanded that the executors transfer the property to them at that appraised price. The surrogate refused to grant the relief the appellant asks for, and his decree has been affirmed by the Appellate Division. The learned surrogate was of opinion that real estate could have no "current market value;" that, therefore, the provision of the will, so far as it related to real estate, was, to a certain extent, inapplicable. We entertain a different opinion and think that real estate has a current market value the same as personal property, though it may be much more difficult of ascertainment. But this difference of view is of no importance. The learned surrogate held that the previous action of the executors in determining the value of the property at the testator's death was not conclusive, and that as the written demand of the appellant and his claim on the trial was that the executors should convey the property to him at the particular sum at which they had previously estimated its value, it should not be granted. In this conclusion (assuming that the surrogate had power in this proceeding to direct a conveyance, of which there may be doubt), we think the surrogate was correct. The appellant should have asked the executors to determine the value of the property as of the time of testator's death and, if that valuation was satisfactory, demanded a sale to him at that price.
The surrogate did not pass upon the claims of the other legatees to join in the purchase of the property, but the record presents the question and we should dispose of it and not remit the parties to further litigation. Under the testator's will there was not to be any race between the several legatees to see who first should claim the purchase of the property. The rights of all legatees were equal, and until a sale was actually made to one, under the provisions of the will, any of the others had the right to claim the same privilege. Therefore, the executors should now determine the value of the property as of the time of the testator's death and convey it to such of the legatees as may elect to purchase it at that valuation. If more than one, then in equal proportions among those who *Page 238 so elect. The practical effect of this may not be very beneficial to any of the parties in interest. It may result in several legatees becoming tenants in common of the property and, if they are unable to agree, in a partition suit entailing large expense on all. Still, that is their affair. The legatees have, by virtue of the will, the right to avail themselves of the privilege granted to them if they choose.
The result of these views is that the order below will be affirmed, without costs in this court to any party, and without prejudice to such proceedings as any of the legatees may elect to enforce compliance with the ninth clause of the will.
CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Order affirmed, etc.