majority">Larremore, J. —

Defendant objects to the title on the following grounds:

I. That the plaintiff had no power to exchange the Fortieth street property. '

II. That she could not give a warranty deed, or sell the property in fee simple as she contracted to do.

III. That her testator’s indebtedness for the $5,540.59 was an incumbrance and lien on the property for which it could be sold by creditors at any time within three years from November 7,1877, to pay his debts.

First. As to the power to exchange. This objection is fully answered by the terms of the will. The testator gives plaintiff a life estate in the premises No. 412 West Fortieth street, or the proceeds thereof. He, in express terms, impresses the character of realty upon said proceeds during the natural life or widowhood' of plaintiff, through all the transitions and changes of form which they may undergo. The power is expressly conferred to sell and with the proceeds purchase other real estate, and to continue the transfer and disposition thereof in the discretion of the executrix. It would seem a fair and rational construction of a power as broad in its terms as the one above stated, to hold that it *82would authorize a direct exchange which would accomplish the result of a sale and a purchase of other realty in a single transaction, and carry into effect the obvious intention of the testator. If, therefore, this was a simple question of exchange not complicated by other considerations, 1 should hold the objection untenable.

Second. Equally ineffectual is defendant’s objection that plaintiff cannot give a warranty deed or sell the property in fee simple. She could certainly give a valid title under the ■power in the will, and, if she saw fit, could give her personal •warranty of the title. A' purchaser has no right to expect from an executrix any thing more than a covenant against her own acts; but, if she contracts to give a covenant of warranty . and actually executes it, the covenant will be valid and she will be bound thereby.

Eawle on Covenants for Title (pages 571 and 572, and eases there cited). In this case the plaintiff tendered the usual deed of an executrix on March 13, 1880. This defendant refused to accept and plaintiff thereafter executed a deed individually and as executrix, containing a personal covenant of warranty and tendered the same to defendant. This latter instrument fulfilled the requirements of the contract on this point. The interval of a day or two between the tender of the two deeds last mentioned and the ¡¡consequent delay in the execution of the contract were immaterial. Time not being of the essence of the contract, and not having been made so by the acts of the parties, the subsequent tender of the warranty deed was sufficient compliance with the terms of the contract as to the time of its performance (Myers agt. De Mier, 4 Daly, 343 ; affirmed, 52 N. Y., 647).

Third. The consideration of the third objection leads to the discussion of matters of graver significance.. 'The judgment for $5,540.59 having been recovered and docketed, not against the deceased during his life, but against ’his executrix, is not a specific lien against the teStatof’s reál estate (Sharpe agt. Freeman, 45 N. Y., 806).

*83Nevertheless, I am not prepared to hold that if specific performances were compelled in this action, the defendant would take the premises in West Fortieth street discharged from all claim and demand on account of said debt. The statute of this state provides that at any time after the accounting of an executor or administrator and within three years after the granting of letters testamentary or of administration, if it shall appear that there are not assets sufficient to pay the debts of the deceased, any creditor may apply to the surrogate to compel the executor or administrator to mortgage, lease or sell the real estate of the deceased to pay said debts (3 Rev. Stat., page 117, sec. 60, 6th edition).

It is also provided (3 Rev. Stat.,page 120, sec. 75, 6th edition), 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 to account for the proceeds pf the sale and make distribution thereof, and have all powers in respect to said proceeds as if the same had been originally personal property.

The provision last cited affords a convenient and inexpensive substitute for the proceeding first referred to. The statute does not, in express terms, make a sale by executors under such a power an absolute bar to a creditor’s proceedings; but if the power had been exercised and proceeds realized which could be brought under the surrogate’s control, it would be just and reasonable to conclude that the statutes above set forth should be construed in connection, and as supplementary the one of the other, and refuse the application of a creditor for a resale. But the case at bar* is widely different from the one contemplated by the statute. The power of sale in the will is not expressly for the purpose of paying debts and legacies. It does not even sanction the conversion of the real estate into personalty. It authorizes the executrix to reinvest the proceeds of the real estate at her pleasure and in her discretion; provided, however, that said proceeds, whatever the form *84they may assume, shall always remain réalty, thus specially withholding from them the character of a personal fund accessible to creditors.

Said proceeds in the new form contemplated by the contract, sought to be enforced herein, could be followed only in equity, and under the circumstances I cannot see that any bar or hindrance would exist to a creditor’s application for a resale of the premises.

Furthermore, this is a proceeding on the part of plaintiff which equity cannot lend itself to further or enforce. Granting that plaintiff is empowered by the will to exchange the realty for other realty, it is at least questionable whether she is authorized to mingle property in which she has but a life interest with property owned by her in fee, and whether this in itself would not unwarrantably imperil the rights of remainder-men. But beyond this, in her trust capacity as executrix, the law and good conscience alike require her to apply first the personal estate, and, after that is exhausted, the real estate of the deceased to the payment of his debts. It is conceded that the personal estate of the testator in her hands does not exceed $150, and that a judgment has been recovered against her, as executrix, as aforesaid for $5,540.59, which is unsatisfied. If the property should be exchanged as provided for in the contract, the newly-acquired realty would not be the “ real estate of the deceased,” and, therefore, could not be reached by the statutory surrogate’s proceedings.- Equity will not aid an effort to impair or destroy the legal remedies of creditors, or sanction an attempt on the part of an executrix to vest individually in herself and mingle with her own property, real estate, which, until her testator’s debts are paid, is chargeable with a trust.

Defendant is entitled to a decree for dismissal of the complaint, and for judgment against plaintiff individually for his reasonable costs and disbursements in the transaction, to be determined by a reference unless agreed upon, but without costs of this action.

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