Opinion
August 3, 1992
Appeal from the Surrogate's Court, Richmond County (D'Arrigo, S.).
Ordered that the order is affirmed, without costs or disbursements.
The decedent, Florence Murphy, died a resident of Richmond County on June 4, 1986, and her will, which was duly admitted to probate on October 10, 1986, named her four children, the petitioner Rose McBrien, and the appellants, Frank Murphy, Jr., John M. Murphy, and Charles J. Murphy as her executors. In the will, the decedent granted to her executors the powers provided in EPTL 11-1.1, including the power to retain real property as long as they deemed advisable and to sell real property, at either a public or private sale, for cash or on credit, in their discretion. When the petitioner and the appellants could not agree as to prospective purchasers of real property belonging to the estate, as well as the terms of the sale, the petitioner instituted the instant proceeding pursuant to SCPA article 19.
The court dismissed the petition when both parties' potential purchasers had withdrawn. We find that the court did not improvidently exercise its discretion under the circumstances, because the immediate matter in controversy had been resolved. However, because the court dismissed the petition without prejudice, there is a likelihood of the recurrence of the issue the next time the executors wish to place real property of the estate on the market. For that reason, we emphasize that a proper resolution of the matter must take into account EPTL 11-1.1 and 10-10.7 Est. Powers Trusts, which set forth the statutory powers of majority fiduciaries, including, as here, executors (see, EPTL 11-1.1 [a] [3]) to sell and to set the terms of sale of real property belonging to an estate (see also, Matter of Flaum, 168 A.D.2d 933, 934, citing Matter of Osterndorf, 75 Misc.2d 730). Balletta, J.P., Ritter, Copertino and Pizzuto, JJ., concur.