Opinion
January, 1916.
Rosenberg, Levis Ball, for administrator.
This is an application by an administrator with the will annexed for an order authorizing him to sell certain real estate in the manner and upon the terms mentioned in the petition. The real estate was held by the testator subject to a first and second mortgage, and the petitioner alleges that a former tenant has offered to purchase the testator's equity for a sum which, in the opinion of the petitioner, represents the market value of such equity. I am inclined to think that the terms upon which a sale of real estate in this city may be made, or the procedure to be followed in effecting a sale, should be left to the discretion of the representative of the estate, and it is only where exceptional circumstances exist that the surrogate should exercise the power conferred upon him by section 2685 of the Code of Civil Procedure, and authorize a sale in a particular manner or for a specified price. In this matter there is no apparent reason why the administrator with the will annexed should not follow the usual course adopted by representatives of estates in disposing of real estate devised subject to a testamentary power of sale. The petitioner also asks the court for directions as to the sale of articles of merchandise used by the testator in the manufacture of millinery. The petition does not state facts which would enable the court to approve the particular method of sale suggested by the petitioner, neither does it show the existence of such unusual or peculiar circumstances as would render it inadvisable or inexpedient on the part of the administrator with the will annexed to dispose of these articles in the ordinary course of business. The application is denied.
Application denied.