JEWETT, CH. J.

The principal question made on the argument was, whether the Surrogate's Court had jurisdiction to compel an account and payment against the executor of the proceeds of the real estate sold by him under the power contained in the will of his testator and of the rents and profits of such real estate received by him before such sale under it.

In behalf of the appellant it was insisted, that that Court did not possess any jurisdiction over the subject, unless it was derived from 2 R.S. 110, § 57, which provides that "where by any last will, a sale of real estate shall be ordered to be made, either for the payment of debts or legacies, the Surrogate in whose office such will was proved, shall have power to cite the executors in such will named, to account for the proceeds of the sales, and to compel distribution thereof; and to make all necessary orders and decrees thereon, with the like power of enforcing them, as if the said proceeds had been originally personal property of the deceased in the hands of an administrator."

I am of opinion that, independent of that statute, and the provisions of § 75 of the statute of 1837, chap. 460, the Surrogate's Court had the jurisdiction claimed by it. By the provisions of 2 R.S. 92, § 52, the Surrogate has jurisdiction, upon application from some person having a demand against the personal estate of the deceased, either as creditor, legatee or next of kin, c.; or without such application, to compel the executor or administrator to render an account of his proceedings; and by the provision of 2 R.S. p. 90, §§ 45, 48, p. 116, §§ 18, 19, he has jurisdiction to decree payment of debts, legacies, and distributive shares against the executor or administrator, in the following cases:

1. Upon the application of a creditor, the payment, c., may be decreed at any time after six months shall have elapsed from the granting of the letters testamentary or of administration.

2. Upon the application of a legatee, c., payment of such legacy, c., may be decreed and enforced at any time after one year shall have elapsed from the granting such letters.

The testator by his will devised and bequeathed all his estate, real and personal, to his executors, their heirs, executors, administrators and assigns, as joint tenants and not as tenants in common, forever, in trust to sell the same, and until such sale, to receive the rents, profits and income thereof, for the purposes of his will, and upon the following trust: First, to invest the proceeds of the real and personal estate, and to pay out of the same $50 annually, for the maintenance and education of his daughter Helena and his son Junius Theodore, respectively, until they should attain the age of fifteen years, over and above their respective distributive shares of the estate and the income thereof. Secondly, to divide the trust fund and the income thereof, subject to those charges thereon, into nine equal parts, and to pay over and convey one part thereof to his daughter Anna Matilda and her heirs, one equal part to his daughter Mary Elizabeth and her heirs, and one equal part to John T. the appellant, and his heirs; to hold one other part thereof in trust for his daughter Hannah Augusta Gautier, and to hold the remaining five parts thereof in equal shares for his other five children, Abraham, Benjamin Charles, Frederick, Helena, and Junius Theodore, who were then minors, as in the next clause of his will mentioned. Thirdly, to hold the shares of such minor children respectively, until they should arrive at full age, and then to pay over the same to them or their heirs or assigns; and during the minority of each, to pay so much of the income of his or her share, for his or her support and education, as the executors should think proper; and if either of said minor children should die under age and without leaving lawful issue, the will directed that his or her share should go to, and be divided among the surviving children of the testator and the issue of such of his children as should have died leaving children.

By these provisions it is manifest, that the testator intended that his whole estate, real and personal, together with the rents, profits, and income, intermediate the sale, should become united in one common money fund for the sole purpose of division and distribution among the objects of his bounty; and upon the principle of equitable conversion, the real estate was converted, by the devise and direction to sell, into personalty, from the death of the testator; the money arising from the sale thereof became legal assets in the hands of the executor when received by him, and for which, as such executor, he was bound to account as personal estate. The intent and direction of the testator to sell the land was absolute, or "out and out" for all purposes. The discretion of the executor in respect to the sale related merely to the time when, c. ( Bogert vs. Hertell, 4 Hill 492; Ram. on assets 206; Leigh vs. Dalsell, on Con. of Prop. chap. 1, 2, 3; Smith vs. Claxton, 4 Mad. 484; Marsh vs. Wheeler, 2 Eden. Ch. R. 157; Doughty vs. Bull, 2 P. Wms. 320; Deg vs. Deg, Ib. 415, 1 Jarmin on Wills, chap. 19.)

Mary Elizabeth, one of the daughters of the testator, who is the wife of Jackson, is a legatee of one ninth of the whole estate, real and personal, including the rents, profits, and income thereof received by the appellant, subject to the payment of the debts and funeral charges of the testator and expenses of the administration, and the directions contained in the will. I agree with the Chancellor that the Surrogate was right in the sentence and decree which he made directing the appellant to account for the rents and profits and proceeds of the sales of the real estate as well as the personal effects of the testator.

2 R.S. 618, § 35, authorises the Court of Chancery, upon affirming any decree, upon appeal from a Surrogate's Court, to that Court, in its discretion to award damages to the respondent for the delay and vexation caused by such appeal. That discretion was exercised by the Court of Chancery on the affirmance of the decree of the Surrogate in this case, and upon correct principles as I think. I am therefore of opinion that the decree of the Court of Chancery should be affirmed, and, under the circumstances, with costs to be paid by the appellant personally.

Ordered accordingly.