Majority
p. 223New York County. Hon. D. G. ROLLINS, Surrogate. July, 1886. Matter of Brown. In the matter of the estate of Ann T. Brown, deceased.
Headnote
Where one who is executor of a will sells the testator’s real property under a power, conferred upon him by that instrument personally and not- as executor, he should not include the proceeds of sale in his official account, nor are the same chargeable with executorial commissions.Hearing of objections to account of executor, filed in proceedings for judicial settlement.
James R. Marvin, for executor.
Benjamin T. Kiss am, for heirs and next oflcin.
Mr. Hamilton, whose accounts as executor of this estate are now before the Surrogate for settlement, has derived, in his capacity of executor, no power or authority over the real estate devised by the testatrix. That portion of such real estate which she derived from her husband’s will is given directly to her children and their issue. The portion not so acquired is devised to this accounting party personally, not as executor but in trust for purposes designated by the will. He has disposed of the latter 'property by virtue of power of sale which the will cb'nfers upon him. The proceeds of such sale he has included in the account now before him,
p. 224
and upon such proceeds he claims commissions as executor. As I have, already intimated, his trust with respect to this real estate is of a purely personal nature. It is not one that is attached to the office of executor. The proceeds of such real estate have not, by virtue of any of the provisions of the will, come into the hands of the executor as such, should not have been included in his account, and are not chargeable with executor’s commissions.