Opinion
May 31, 1960
In a proceeding by one executor, James M. Brennan, for the sale of testatrix' real property, the coexecutor, Thomas L. Brennan, appeals from an order of the Surrogate's Court, Queens County, dated December 29, 1959, denying his (the coexecutor's) motion to vacate the decree of said court, entered July 22, 1958, which approved and authorized the sale of such real property. Order affirmed, with one bill of $10 costs and disbursements, payable by appellant personally to the respondents. After the expiration of the time to appeal from the decree, said coexecutor made the motion to vacate it on the ground that all the devisees (who include the two executors) had agreed, among themselves, that they would take the real property free of the executors' power of sale. As to all these parties it is now settled that, under the statute (Surrogate's Ct. Act, § 234, subd. 7), the Surrogate had jurisdiction of the proceeding for the sale of the testatrix' real property by the executor and was empowered, in the exercise of his discretion, to authorize the sale ( Brennan v. Brennan, 8 A.D.2d 621, motion for leave to appeal denied, 8 A.D.2d 827; 7 N.Y.2d 705). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.