In re the Judicial Settlement of the Accounts of Day , 75 Misc. 597 ( 1912 )

Ketcham, S.

The surrogate undoubtedly has power to construe a will, whenever such construction is necessary to the making of a decree in a proceeding pending before him for the judicial settlement of the accounts of an executor. But this is all the power which he has for the purposes of the present case. Unless the interpretation is essential to the decree distributing the specific fund for which the executor accounts or is accountable, the court may not interpret. Code Civ. Pro., § 2472, subd. 3, last paragraph; § 2481, subd. 11.

Here the accountant discloses personal assets and claims credit for disbursements. The will under which he accounts contains legacies in excess of the gross personal estate. It is contended that these legacies were by the testator made chargeable upon lands of which he died seized and that the court should so declare upon analysis of the will in the light of the circumstances of its execution.

To construe this will in this proceeding, the court would either be content with an empty and academic opinion or would assume to direct the executor to exercise the power of sale which the will contains and by its aid provide for the payment of the legacies.

Either course seems unlawful. One would have no force; the other a force which the court has no right to exert.

Unless an executor holding a power of sale has executed the same and has brought the proceeds thereof into court for distribution, there is no warrant for an adjudication as to whether or not lands embraced in the power are to be resorted to for the payment of legacies. Bevan v. Cooper, 72 N. Y. 317.

The account will be settled accordingly.

Decreed accordingly.