Daniell v. Hopkins — 231 A.D. 745

Majority

p. 745

John F. Daniell and Others, as Executors, etc., of Vera L. S. Daniell, Deceased, Respondents, v. Josephine Lawrence Hopkins and Others, Appellants. John F. Daniell and The Equitable Trust Company of New York, as Administrator de Bonis Non of the Estate of Russell Hopkins, Deceased, Respondents.

Judgment modified so as to provide that the plaintiffs, respondents, executors of the last will and testament of Vera L. S. Daniell, deceased, be authorized and empowered to sell the cemetery lot involved, not by virtue of the power of sale contained in said last will and testament, but in furtherance of the enforcement of the equitable lien of the Equitable Trust Company of New York, as administrator de bonis non of the estate of Russell Hopkins, deceased. As so modified, the judgment is unanimously affirmed, with costs to the administrator de bonis non. The situation presented is not one in which the court should, in the exercise of its discretion, make a declaratory judgment -with respect to the power of sale contained in the will. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Present — Young, Kapper, Hagarty, Carswell and Scudder, JJ. Settle order on notice.