and conveyance of said premises by my executor as hereinafter provided, I give and devise unto my sister, Catharine Denny, the use of the top floor of the house and premises known as No. 227 East Fifty-second street, New York city, free of rent." No other or further power of sale was given. In delivering the opinion of the Court, Judge MAYNARD said: "It is evident that the testamentary plan which the testatrix had formulated in her mind, contemplated the grant of a power of sale to her executor. If the form adopted to express her intention is ambiguous or incomplete the intent nevertheless should prevail. Formal words are not necessary to create a power and, to quote the language of Sugden: However obscurely in a will. the intention may be expressed, yet if it appears that a power of sale was intended, a sale will be supported.""

Gerard on Titles, fourth edition, page 430, in the text on the subject: "Powers Inconsistent with Devise," says: "There has been a question whether a power to sell land by executors, given after a direct and absolute devise in fee, was valid. The general rule is, that a power shall not be exercised in derogation of a prior grant by the appointer. It is held that a power of sale may be exercised notwithstanding a prior devise of the land in question, in case the power appears necessary to carry out the intention of the testator."

Kinnier v. Rogers (42 N. Y. 531), in many features parallels the case at bar, and has long been the leading case on the subject of a general discretionary power of sale in this State. The will there considered contained this clause: "All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath unto my children living at my decease, and the issue of such as may then be dead in representation of its deceased parent, equally share and share alike forever."

This was followed by a distinct and separate clause appointing three executors, and giving authority and power to them,

or such of them as shall qualify, the survivors and survivor of them, to sell all or any part of his real estate at any time, in their or his discretion, at public or private sale, and to execute valid deeds of conveyance for the same to the purchasers thereof. The court held in substance that the testator probably acted in giving the power of sale in reference to the facts and circumstances connected with his family, and the ages of his children, And that the exercise of the power would secure a division of the avails among the parties in interest, without the delay and expense of an action in partition, or other judicial proceedings, and the devise was subject to the power, and until it was exercised, the title to the land itself remained vested in the children, and after its exercise they took it in its substituted form.

I am constrained to believe that the testator, Bielby, was similarly influenced and thereby led to grant to his executor a discretionary power of sale. The power of sale given by the testator to his executor was a valid power in trust to convert the land into personalty and that his executor could convey good title. There having been a sale and conversion of the land into personalty under said power, not only without objections on the part of the present contestants, but with their knowledge, and full value having been obtained for the realty, I hold and decide that the title of the devisees in the land has been divested and an interest in the proceeds substituted. (McCready v. Metropolitan Life Ins. Co., 83 Hun, 526.)

The item of $125 paid by the executor to Mr. Ackroyd, as commissions for selling a part of the real estate is under objection. The executor was a woman without experience in business matters or affairs of the world. She, being one of the devisees, was naturally anxious to obtain the highest possible price for the real estate, and, having no knowledge of such matters herself, did what seems to me to be a very natural thing, secured the services of Mr. Ackroyd, of Whitestown, who

though an undertaker yet had had wide business experience, was a leading and respected citizen of the community and had served as State senator. It was established that Mr. Ackroyd, as agent, for the executor, sold the piece of property in question to the present purchaser at a price not questioned by the most critical of the contestants. It is not charged that the commissions are excessive, but that there having been no power of sale in the will the executor was powerless to incur any legal obligation in connection with the sale of the real estate; but that if there was a power of sale then it was the duty of the executor to have made the sale herself.

The accounting party here is the executor selected by the testator, and was his niece. He knew her mental limitations and business experience, yet selected her. From the standpoint of intelligence and from my observation of her in court and upon the witness stand, I regard her quite the equal of the majority of those who serve in similar capacities. An executor is only required to bring to the discharge of his duties the intelligence which an ordinarily good business man would use in like matters. The rule would be too severe should the surrogate judge the representative wholly upon the results, or in the light of his present knowledge of what has happened. The representative should not be judged by the fuller knowledge which they possess upon the accounting, but rather by the knowledge and facts which were accessible to them at the time they made the decision which they were required to make, and for which they are now being criticised. (Matter of Watson, 92 N. Y. Supp. 195.) Few mistakes would be made by representatives if their forethought was as good as their hind thought, and this is equally true of courts, attorneys and parties who criticise them.

The record shows that the representative's attorney, Mr. Calder, and Mr. Backus, former attorney for the contestant, James A. Bielby, conferred upon the subject of employing an

agent and both agreed that the real estate should be handled by an agent and it also appears that Mr. Bielby's attorney, Mr. Backus, so informed him. No objection was then made by the contestant, Bielby, to the real estate being handled by an agent, hence he should not now be sustained in his complaint. I, therefore, overrule the objection to the item of $125 paid to Mr. Ackroyd, as commissions for selling the real estate, and allow the same.

It is claimed by contestant, James A. Bielby, that by objection he has placed in issue the question as to whether his indebtedness to the estate, as set out in the account, can be set off by the executor against any amount directed by the decree to be paid to him, on the ground that objection having been filed the burden was on the accounting party to establish the amount of indebtedness of said James A. Bielby, to the estate. No evidence was given by either side.

In Schedule B. of the account, the executor separately charges said James A. Bielby with an indebtedness to the estate arising out of a land contract and four notes, together with accumulated interest up to October 1, 1914, in the total amount of $2,059.47. Said contestant Beilby's objection thereto is as follows: "James A. Bielby, one of the legatees under the last will and testament of the above named decedent, does hereby object further to the account filed herein by the executor herein, upon information and belief, as follows: 3. That the indebtedness of said James A. Bielby to said estate is not correctly stated in said account."

It is well settled in surrogate's practice that the account filed and objections thereto constitute the pleadings and determine what issue shall be tried and limit the examination to such issues. (Matter of Heuser, 87 Hun, 262; Matter of Woodward, 69 App. Div. 286; Matter of Sloane, 135 App. Div. 703.) Did the contestant by stating upon information and belief

"that the indebtedness of said James A. Bielby to said estate is not correctly stated in said account" raise an issue?

Unless there is a denial of that part of the account involving said contestant's interests, then no issue has been raised.

The form of pleading used may be termed a covert negative pregnant pregnant with the admission of indebtedness, but with the actual amount concealed. The contract and note obligations are not denied, nor is the amount claimed by the estate specifically challenged. The objection states no fact which furnishes any light, and the executor could not be expected to correct any error not pointed out. Objections to an account, to be available, must plainly indicate the defect. Representatives of estates and surrogates have no divining rods to aid in the location of subterranean waters or concealed errors. There is no word of denial in the objection, and no new matter alleged.

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"The objector to an account is as much bound to set up in such objections any claims which he proposes to make, as the defendant in an action is bound to set up in his answer any claims which he proposes to urge against the plaintiff." (Matter of Archibald Johnston, Decd., 39 N. Y. St. Rep. 521; Matter of Hart, 60 Hun, 516.)

We, therefore, have no general or specific denial of the material allegations of the complaint, or account, as provided by the Code of Civil Procedure, section 500. The executor, or accounting party, was not therefore bound to prove her account as against the contestant, James A. Bielby. Not having been denied, it was admitted. (Wallach v. Commercial Fire Ins.

Co., 12 Daly, 387.)

The objection is overruled and the $2,059.47 must be set off against any sum due said James A. Bielby from the estate, with legal interest from October 1, 1914.

There is another objection filed by the same contestant which is a very near relative to the one just disposed of. It reads as