Appeal from a judgment of the Appellate Division of the . Supreme Court in the second' judicial department, entered January 20, 1902, in favor of defendants upon the submission of a controversy under section 12Y9 of the Code of Civil Procedure.

This was a submission to the Appellate Division of the Supreme Court, in the second judicial department, of a controversy between the parties to an agreement, for the sale by the plaintiff and for the purchase by the defendants of real estate. The defendants refused to take the title, upon the ground that the plaintiff could not convey one that was clear and marketable. The facts were that the plaintiff derived what right she had to make the sale, as the executrix of. the will of Asa W. Parker, deceased. When he died, his personal estate was of no value and the equity in his real estate did not exceed, in value, $10,000; which was very considerably less than the admitted debts. The plaintiff contracted to sell within a year of testator’s death. The will was brief and in the following words : “ I give all my property to my executors, or those who act as executors, their survivors or survivor, to use and dispose of the same as though I died intestate.

“I authorize and empower -such executors who act to sell and convey any real estate of which I die seized.

“.I name as such executors my wife, Sophie Gr. Parker, my children, Asa W. Parker, Jr., Gordon Parker and Mabel 0. Parker.

“ I revoke all former wills by me made.”

The Appellate Division awarded judgment to the defendants, upon the ground, in substance, that the power of sale was discretionary and not imperative and, hence, did not deprive a creditor of the right to a judicial sale of the real estate of the testator, under the provisions of the statute. (See Code Civ. Pro. §§ 2750, 2759.) The plaintiff then appealed to this court.

Whether the power of sale is discretionary or not, or given for the payment of debts or not, is immaterial; after its exercise the creditor cannot compel the sale of the real estate over again. The purchaser would get a good title. (Glaucius v. Fogel, 88 N. Y. 435; Matter of .Gantert, 136 N. Y. 112.) The proceeds of the sale would be assets in the hands of the executor for the payment of debts. (Irwin v. Loper, 43 N. Y. 525; Matter of Gantert, 136 N. Y. 113; Code Civ. Pro. § 2726.) The power of sale in the will is clear and explicit, and is not discretionary. (1 E. S. 734, § 96; Van Bosberk v. Herrick, 65 Barb. 257; Smith v. Floyd, 140 N. Y. 337.)

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