In re the Estate of Rothko

Nunez, J. (dissenting in part).

I part company with my brethren of the majority and Surrogate Midonick only on the issue of damages. The Surrogate correctly found that the executors had the power of sale (EPTL § 11-1.1, subd [b], par [5], cl [B]) and were not required to distribute in kind. The general rule is that executors, absent any authorization or direction in the testator’s will, are duty-bound to wind up the affairs of the estate except for the temporary purpose of converting the assets into money (cf. Willis v Sharp, 113 NY 586, 589; Matter of Begent, 37 AD2d 310, 311). In Matter of…