Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 8CK00L By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN5200.Z9W24 The law relating to disposition of deced 3 1924 022 813 632 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022813632 THK LAWT RELATING TO Disposition of Decedent's Real Estate MORTGAGE, LEASE OR SALE PAYMENT OF DEBTS AND FUNERAL EXPENSES, UNDER THE CODE OF CIVIL PKOOEDURE STATE OF NEW YORK. "WITH b"orm:s. .^rf^" ■By SAM. H". W A i[ D E L L , Counselor- at-L aw, AUTHOR OF "THE LAW OF INNS, HOTELS AND BOARDING-HOUSES." 'We have strict statutes and most biting Zaw»."— Measure for Measure, Act I, Scene 3 . EOCHESTBR, N. Y.; WILLIA.MSON LAW BOOK COMPANY, Successors to Williamson <& Higlie, LAW BOOKSELLERS AND PUBLISHERS. 1889. . Entered, according to act of Congress, in the year eighteen hundred and eighty-nine, Bt WILLIAMSON LAW BOOK COMPANY, In the oflfice of the Librarian of Congress, at Washington. WEED, PAKSOXS AND COMPANY, PRINTERS AND ELECTROTTPERS, ALBANY, N. Y. TO HONORABLE GERRITT A. FORBES, OF CANASTOTi, S. 1., ONE OF THE JUSTICES OF THE SUPKBMB COUKT OF THK STiTB OF NEW YORK, DISTIN&TJISHBD ALIKE FOR ABILITY, EQUITY AND INTEGRITY, AND FOR HIS KINDNESS AND CONSIDERATION TO- WARD THE YOUNGER MEMBERS OF THE LEGAL PllOPESSION, THIS BOOK IS RESPECTFULLY INSCRIBED BY THE AUTHOR. PREFACE There is no more complicated branch of the law relating to decedents' estates than the proceedings in Surrogate's Court for the disposal of the real property of a deceased person for the purpose of paying the debts, which were owing by him, at the time of his death, and of satisfying his reasonable funeral charges. Such proceedings were unknown at common law, and therefore the statutes authorizing and regulating them are to be strictly construed and followed. As they are in the nature of an attack upon the rights of the heirs and devisees who succeed to the property of their ancestor, it is of the utmost importance that each step therein be taken with due caution and with a perfect imderstanding of the subject; otherwise errors might arise which would vitiate the entire proceeding, and seemingly trivial defects might render void all decrees made therein. The titles of purchasers at sales under such decrees depend for their validity upon the regularity with which the proceedings were instituted and conducted. In the following pages the author has given in fuU the sec- tions of the Code of Civil Procedure relating to the subject, arranging them for convenient reference into chapters, and has also collated the various decisions of the courts under ap- propriate headings ; with each citation is given the court - in which the case was decided, and the date of the decision, showing at a glance the value of the authority. Ti Preface. An appendix of carefully compiled forms has been added which will be found appHcable to every stage of the proceeding. It is believed that this work upon a special branch of surro- gate's law will simplify the practice in such proceedings to attorneys who have not the time nor opportunity for a thorough investigation of this intricate subject, which has been frequently unsettled by conflicting decisions and materi- ally changed by the adoption of the Code of Civil Procedure. SAM. H. WANDELL. Stkacusb, N. Y., October 1, 1889. TABLE OF CONTENTS. CHAPTER I. PROPBKTY SUBJECT TO DISPOSAL. PAGE What property may be disposed of 1 Exempt property , 3 Rents accruing after death real property 3 Object of this title 3 Nature of the proceeding 4 What debts will not authorize sale 4-6 Funeral expenses include headstone 6 Sale authorized for funeral expenses 6 Statutory lien of judgment 7 Extent of heir's liability for ancestor's debts 7 Testamentary powers of sale — • wills 7-10 Seizin of decedent 11 Becedent's estate not subject to execution 11 CHAPTER II. PERIOD OF LIMITATION. When application to be made 12 No limitations prior to statute 13 Object of limitations 13 Operation of the statute 13-14 Computation of time 14-16 Reviving debt barred by statute 16-17 When limitation available as a defense 17 Creditor's time to apply extended ' 17-18 Disability of creditor 18 CHAPTER III. THE PETITION AND ITS REQUISITES. What the petition must contain 19 Filing petition for disposal 20 viii Table of Contents. PAGE. Application before debts due 30 Dfefective petition 20-23 Sufficiency of petition 22-24 Petition by creditor of decedent 24-25 Accounting by representative formerly required 25 Accounting by representative unnecessary 26 When executors should not petition 36 Petition during pendency of accounting '. 26 When proceedings properly delayed 37 Personal property exhausted in legacies ■ 27 Personal property must be applied before sale of realty 37 When second petition unnecessary 37 Inquiry as to unknown facts 28 CHAPTER IV. THE CITATION AND PAKTIB8. When citation to issue — requisites 39 Jurisdiction of the persons of parties 30 Who are necessary parties 30-32 Necessity of appointing guardians for infants 32-38 Foreign administrator cannot petition 38 Several administrators applying 84 Defective citation 34 When citation refused 34-35 Publication of citation 35 Death of interested party 35-36 CHAPTER V. THE HEARING AND PROOFS. Proceedings upon the hearing 87 Contesting judgment against representative 37 Limitation of recovery — offsets '. 38 Surrogate cannot determine title 38 Surrogate's exclusive jurisdiction 38 Who may contest proceedings 39 What defenses proper 39-41 Admission of representative against lieir 41 Fraudulent conveyance does not estop heir contesting 42 What debts may be established 42-43 Claim cannot exceed judgment 43 Legal and equitable claims proper 43 Claim for mesne profits 44 Claim for necessaries furnished imbecile 44 Stated account of committee of lunatic 44 Table of Contents. ix PAGE. Over-payment by administrator 44-45 Amount of proof reljuired 45-46 When judgment is evidence of debt 46 Heir cannot levy contribution on devisee 46 Rule for marshalling assets 47 Inventory presumptive evidence of personal estate 47 Application of personal estate 47 Determining insufficiency of personal assets 48 Papers on file judicially noticed 48 Jurisdiction of the subject-matter 48 Onus probandi of jurisdictional facts 48-49 Surrogate's equity jurisdiction 49 Surrogate tnay adjudicate disputed claim 49-50 Discontinuance of proceeding 50-51 CHAPTER VI. THE DECREE FOR DISPOSAL. Decree to specify debts — filing vouchers 53 Wliere new application required 53 Selling real estate of surviving partner 53 Recitals in decree 53 Collateral impeachment of order of sale 53 When decree refused 53 Proofs necessary to obtain decree 53-54 Sufficiency of evidence presumed 54 Trial by jury — when ordered' 54-55 Trial by jury — how reviewed 56 Appeal from verdict 56 Requisites of decree 56 Omission of portions of property 56 Jurisdictional defects not cured by statute 57 Parol evidence to supply records 57 Errors only available on appeal 57 Parties to appeal 57 Decree conclusive as to assets 58 Effect of decree 58 CHAPTER VII. MANNER OF DISPOSAL. Appraisal of real estate 59 When sale should be ordered 59 Sale of whole or part of decedent's property 60 Postponing sale of portions of estate 60-61 Order in which property should be sold 61 X Table of Cou-tents. PAGE. Protecting purchaser from heir 61 When sale by parcels proper 61 Executors not required to sell vault 62 Precedent estates and prior sales 63 CHAPTBE VIII. BXBCTJTION OP THE DECREE. Bond required before execution 63 Appointment of freeholder 63 Order directing execution 64 Appellate court directing execution 64 Execution not suspended by death, etc 65 CHAPTER IX. SALES AND CONVEYANCES. Place and manner of sale 66-68 Administrator's'duty in conducting sale 68 Extent of administrator's authority , . 68 Separate parcels to be sold separately. 69 Unincumbered lands first sold 69 Sales upon credit 69 Certain purchases prohibited 69 Purchases by interested persons 69-70 Liability for fraud in sale 70 Vacating the sale 71 When sale vacated 71-73 Confirming the sale — conveyance 78 Purchaser deducting debt 73-73 Deed should set forth order of sale , 73 Errors in the conveyance 74 Sufficiency of description of lands 74 Waiver of irregularities 74 Necessity of confirmation 74 Effect of confirmation 75 Prior purchaser from heir 75 Prior sales of same property 75 Purchaser's title paramount to conveyances from heir 76 Protection of mortgagee from lieir , 76 Effect of conveyance 76 Effect of sale 77 Purchaser's title prior to unrecorded sheriff's deed 77 Purchaser's title subject to incumbrances 77 Purchaser's right to growing crop 77-78 Compelling purchasers to take title 78 Tabl?: of Oontents. xi PAGE. Purchaser's right to appeal 79 Sales subject to contract payments 79 Purchaser's bond 80 Penalty of bond on sale 80 Sale of part interest under contract 80 Efflect of conveyance of contract interest 80 Subrogation of decedent's contract interest 81 Irregularities not affecting proceedings 82 When appointment of guardian presumed 83 CHAPTER X. DISTRIBUTION OF THE PROCEEDS. Money to be deposited with county treasurer 83 Notice of distribution 83 Bearing proofs of claims 83 Property sold to pay legacies 84 Disposition of unsold property 84 Property in different States 84 Claims to surplus money 84 Proceeds of sale not subject of action : 85 Supplementary decree 85 Supplementary decree to adjust costs 86 Creditor not entitled to costs 86 Supplementary decree to fix payments . . 86 Order of distribution 87-89 Judicial interpretation of the statute 89-91 Priority of debts 91 Judgment creditor must share pro rata 93 Individual and copartnership creditors 93 What debts can be paid 93 Compensation of personal representatives : 93 Adjournment of distribution 93 Proceeds distributed as personal property 94 Creditor's appeal from distribution 94 Estoppel of infant from contesting 94 Securities in county treasurer's name 94 CHAPTER XI. DOWBR IN PROPERTY DISPOSED OF. Dower in contract interest 96 Investment of dower 97 Computation of dower ". 97 Annuity table 98 Rule for computation by table 98 Partition or foreclosure not to affect proceedings 98-99 Table of Contents. CHAPTER XII. SURPLUS MONEY. PiOE. Disposition of surplus money 100 Distribution of surplus money 101 Surplus money distributable to heirs 101 Creditors of heirs have lien on surplus 101 Fund invested for infants, etc 102, CHAPTER XIII. MISCELLANEOUS PROVISIONS. Definition of terms 103-105 Appointment of referee 105 Requiring judicial settlements 105-106 Restitution to heirs 106 FORMS. Petition 107-111 Creditor's notice of pendency of action 113 Order for executor or administrator to account 113 Order that citation issue 114-1 15 Citation , . ; 115-116 Order for trial by jury 116-117 Order for appraisement of real estate 117-118 Appointment of appraisers 118 Appraiser's oath 119 Appraisal of real estate 119 Affidavit of appraisal 119-120 Decree for sale 120-124 Decree for mortgage 124 Bond on disposal of real estate 124-126 Order appointing a freeholder 126-127 Order directing execution of decree 127-128 Notice of sale , 128 Report of sale 139-130 Notice of motion for confirmation 130-1 31 Order vacating sale , 182 Order confirming sale ; , 133-138 Deed upon sale of decedent's real estate 133-135 Order for distribution of proceeds 186 Notice of distribution , 137 Notice to widow 138 Consent of widow to accept gross sum 138-189 Supplementary decree on distribution , . . 139-141 Addenda , 143-147 TABLE OF CASES. A PAGE. Ackley v. Dygert . 4, 20, 21, 27, 30, 33, 94 Atkins V. KinnaD 20,53, 73 Baker V. Lorillard 31 Ball V. Miller 45 Barnet v. Kinoaid 50 Barrett v. Choeii 77 Barto V. Tompkins County Bank. .. 77 Bennett V. Grain 3,24,31,39, 40 Bloom V. Burdick ...4, 25, 30, 32, 47, 74 Bloodgood V. Bruen 84, 94 BoltT. Rogers 70 Bostwiok V . Atkins 48,70, 75 Breevort v. M'Jimsey 35 Bridge V. Swain 48, 52 Burhara V. Harrison 5 Butler V. Bmmett 6,24, 77 Butler V. Johnson 39 Campbell V. Eenwiok 40,42, 44 Carmen V. Brown 10,. 16 Chandler V. Northrup 48, 49 Church V. Olendorf 13 City of Rochester V. Smith 8, 9 Clark V. Igglesdeu 86 Cleveland V. Whiten 49 Colson V. Brainard 41 Coogan V. Ackershausen 7, 10 Corwin v. Merritt 4, 27, 33, 35 Cromwell V. Phipps 78 Uavis V. Davis 90 Delaplaine V. Lawrence 79 Dennis V. Jones 7,8,20,21,32, 45 Denise V. Denise 146 Dorland V. Dorland 10 East Ri ver National Bank v. McCaffery 43 Bddyv.Trover 61 Estate of CampTjell 72 Estate of Cornwall 5, 13 Estate of King 6 EstateofLadd 83 Estate of Le Baron 9] Estate of Meakin 5,18, 92 Estate of Rosenfleld 7, 8, 26, ■ 46 Estate of Wilcox 5, 42, 43, 58, 89, 91 Estate of Zahrt 97 F PAGE. Farrington v. King 13, 20, 51, 54, 57 Ferguson V. Broome 4,7.17 39 Fitch v. Whitbeck ...; 34 Fonda v. Chapman (j.^ 75 Forbes v. Halsey 47, 48, 49, 70, UB Fox V. Lipe 68, 74 Gallup V. Perne 145 Gilchrist V. Eea 5,62, 57 Gilraan V. Thompson 30 Graham V. Linden 53 Greene V. Roberts 145 Grigon's Lessee V. Astor. . . 30 Griswold V. Griswold 42 H Hall V. Partridge 75 Hamilton V. Smith.., 9 Hart V. Ten Eyck .,, 70 Harvey V. McDonnell 61 Havens V. Sherman 34 Hewitt V. Hewitt " 38 Higbie V. Westlake 93,94, 96 Hoevy V. Kinney 39 77 Horton V. Horton 71 Hurd V. Callahan ....'. 43 Hydev. Tanner ]3, 76 In re Dolan 31 In re Halg's Estate 22 32 In re Haxton . . . . : 41,42,49,50,146 In re Estate of Belleshiem 4, 78 In re Lawrence 68 In re Estate of Wilcox 58 Jackson v. Crawfbrds 22, 53, 57 Jackson v.HoUiday 80 Jackson V. Irwin 22, 61, 67, 68, 72) 77 Jackson v. Robinson 22,34, 53 Jenkins V. Young 2I, 36 Jennings V.Jones 18,42, 68 Jewett V. Keenholts 4, 7, 13, 76, 78 Jones V. Le Baron 40,41, 42 Jordan v. Polliard 31 Karmer V. Zeigler 22, 31, 32, 48 Kavanagh v. Wilson 45 Kenyou v. Talbot 90, 91 yiv Table of Cases. Knickerbocker v. Decker 37 Kohler V. Knapp 3 Kowing V. Moraii 3,6,44, 51 Lawrence V. Elmendorf 84 Lerche v. Brocher 146 Livingston v. Livingaton 2, 46, 47 Livingston V. Newkirk 45, 47 Long V. Olmstead 2, 86 Ludlow's Heirs V . Wade 30 M M'Nabli V. Pond McPherson V. Culiff Matter of Clark Matter of Davids 9, 26, Matter of Dolan 22,31, Matter of Dodge 10, Matter of Fox 3,9, Matter of Fraser Matter of Gardner Matter of Germ an Ban k .... 21 , 23, 25, Matter of Glann MatterofHaig 23, Matter of Inglesden Matter of Rider Matter of Rosenfleld Mead v. Jenkins 12, 15, Mead v. Slierwood 21, Monarque v. Mouarque Mooers v. White 13, 20, 39, Moore V. Moore 4, N North River Bank v. Stewart O'Donnell v. Lindsay 67 Olrastead V. Long 73 Overseer of Bridgeport v. Overseers of BrookBeld 70 Owens V. Bloomer 6, 57 Parce v. Halbert 67 Parkinson v . Jacobson 13, 15 Pelletrau V. Smith 91 People V. Westbrook 50, 93 Piatt V. Piatt ;. 7 PAGE. Price V. Fenn 33, 82 R Eaffertyv. Clark 9 Raven V. Norton 51 Raynor V. Gordon 17,24, 39 Rea V . M'Eachron 74 Eenwick V. Renwiok 17,41, 43 Richardson V. Judah 40 Richmond V. Foote 1,23,24, 38 Robinson v. Stewart 145 S Sanf ord v. Granger 25, 45, 86 Schneider V. McFarland 30, 32 Sears v . Mack's Assignees 77, 101, 102 Sheldon V. Wright 35,57, 74 Shutev. Shute 26,90, 92 Sibley V. WalHe 53 Skidmore v. Romaine. .4, 17, 25, 40, 41, 43 44, 62 Slocum V. English 13, 20 Smith v. Buchanan 93 Smith V. Coup 9, 22 Smith V. Meakim 6, 9a Smith V. Soper 13 btillwell V. Swarthout ..33, 34, 57, 75, 85 T TferwiUiger r . Brown 70 Thayer V. Gilligan 40 Thompson V. Brown 32 Turner v. Arasdell 31, 46, 50 U U. S. Life Ins. Co. V. Jordan 16 V Van Nostrandv. Wright 25 W Warren V. Poff 17 White V. Kane 9, 13, 96 White V. Pollen 100 Williams V. Hutchinson 145 Wilson V. White 31, 82 Wolf V. Lynch 78 Wood V. Morehouse H, 67 Woodruff V. Cook 6 Woods V. MoChesn ey . . 21, 24 , 39 , 40, 49 , 75 DISPOSITIOK DECEDENT'S REAL ESTATE MORTGAGE, LEASE OR SALE, THE PAYMENT OF DEBTS AND FUNERAL EXPENSES, UNDER THE CODE OF CIVIL PROCEDURE OF THE STATE OF NEW YORK. CHAPTER I. PROPERTY SUBJECT TO DISPOSAL. What Property May Be Disposed of. Section 2749. Real property, of which a decedent died seized, and the interest of a decedent in real property, held by him under a contract for the purchase thereof, made either with him, or with a person from whom he derived his interest, may be disposed of, for the payment of his debts and funeral expenses, as prescribed in this title ; except where it is devised, expressly charged with the payment of debts or. funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteenth of this act. The expression, " funeral expenses," as used in this title, includes a reasonable charge for a suitable headstone. The vendee's title under an unwritten contract for purchase of land, taken out of the statute of frauds by his part perfoi'm- ance, is subject to sale for payment of his debts. It is proper that the vendee's interest in the land be sold ; it is not necessary that the contract merely be assigned. Richmond v. Foote, Supreme Court, General Term, Third De- partment (1870), 3 Lans. 244. 2 ' Disposition' of Decedent's Eeal Estate When tlie personal estate ia insufficient for payment of the decedent's debts, the court may sell the real estate of which decedent died seized, but not lands held in trust for the decedent. Livingston v. Livingston, Court of Chancery (1817), 3 Johns. Ch. 148. The Surrogate's Court from wliich letters testamentary or of administration have been issued, has jurisdiction under this title to decree the disposition of the decedent' s real property wherever the same may be situated, within the limits of the State, and is not confined to that found within its own county. When the Surrogate's Court has jurisdiction of the parties and of the sub- ject matter, it draws to it the povsrer to manage and control the real and personal estate of the decedent, wherever it may be situated, within the limits of the State. Long V. Olmstead, Westchester County Surrogate's Court (1885), 3 Dam. 581. While the owner of a pew in church has no interest in the soil on which the building is erected, his right to the use of the pew is a right springing out of the land, and is an incorporeal hereditament, descending to the heirs at law of the deceased owner. While an executor or administrator cannot be held to account for the proceeds of the sale of such a pew, belonging to his decedent, the creditors may take measures to have the pew sold as part of the real estate of the decedent. M'JVabb y. Pond, New York County Surrogate's Court (1856), 4 Bradf. 1. Exem/pt Property. A seat or pew occupied in a place of public worship is exempt from levy and sale under an execution. Code of Civil Procedure, section 1390. Land set apart as a family or private burying-ground, properly designated by recording a proper description thereof, with a notice stating it has been so set apart, is exempt from levy and sale under an execution. But a portion of the land must have been actually used for this purpose; it must not exceed in extent one-fourth of an acre, and it must not contain any build- ing or structure, except one or more vaults, or other places of deposit for the dead, or mortuary monuments. Code of Civil Procedure, sections 1395 and 1396. Cemeteries are exempt from execution sales. Laws of 1877, chapter 31. Foe Payment of Debts and Funeral Expenses. 3 A lot of land with one or more buildings, not exceeding one thousand dollars in value, owned and occupied by a householder, having a family, as a residence, properly designated as pre- scribed by law, is exempt from execution. Code of Civil Procedure, sections 1397 and 1398. As to when a married woman's homestead is exempt see. Code of Civil Procedure, section 1399. But the homestead exemptions cease and expire at the majority of the youngest surviving child and on the death of the widow, and when the homestead ceases to be permanently occupied by the family. The right of exemption is not afEected by a sus- pension of the occupation of the real propei'ty as a residence for a period not exceeding one year, which occurs in conse- quence of an injury to or destruction of the dwelling-house on the premises. Code of Civil Procedure, sections 1400 and 1401. See also sec- tions 1403-1404. Bents Accruing after Death Ileal Property. Rents of real estate belonging to the decedent, accruing and collected subsequent to his death, are not personal, but real property, and are not the basis of administration. Kohler r. Knapp, New York County Surrogate's Court (1850), 1 Bradf. 341. Object of this Title. The object of a sale of decedent's property nnder this title is to procure money with which to pay the debts of the deceased, and if the money can be obtained otherwise such object no longer exists. Kowinq v. Moran, Westchester County Surrogate's Court (1887), 5'Dem. 56. The provisions of law as to the sale of real estate of deceased persons to pay debts are to the effect and for the purpose of working out a pro rata distribution among creditors of the proceeds of such real estate. Matter of Fox, Court of Appeals (1883), 93 N.Y. 96.; Bennett V. Grain, Supreme Court, General Term, Fourth Department (1886), 4 N. Y. State Kep. 158-161. DisPOsiTioK OF Decedent's Eeai Estate Nature of the Proceeding. An application to sell lands for the payment of a debt is not "an action." Eedfield's Surrogate Practice, 2ud edition, p. 602 ; SMdmore v. £omaine,'New YorkCountySurrogate's Court (1852),3 Bradf.132. This statutory power has been loosely called a lien, but the language is not accurate. Per Learned, J., in Fonda v. Ghapman, Supreme Court, Gen- eral Term, Third Department (1880), citing 1 Edw. Oh. 565, and distinguishing 16 Pet. 62 ; 16 Barb. 193 ; 1 id. 75. While the mere existence of a debt creates no lien on real estate during the life-time of the debtor, upon his death the character of the debt is changed by the statute authorizing a sale of real estate to pay debts, and the debt becomes at once a lien on the land, which descends to the heir or passes to the devisee, charged with the payment of the ancestor's debts. Jewett V. Keiiholts, Supreme Court, Albany General Term (1853), 16 Barb. 193. At common law no court had any jurisdiction to order a sale of real estate of a decedent for the payment of his debts. In re Estate of Belleshien, Westchester County Surrogate's Court (1888), 1 1. Y. Supp. 478 ; s. c, 17 N. Y. State Eep. 10. Every statutory authority in derogation of the common law, to divest the title of one person and transfer it to another, must be strictly pursued, or the title will not pass. When lands are to be taken under such statutory authority every requisite of the statute having the semblance of benefit to the owner must be strictly complied with. Corwin v. Merritt, Supreme Court, Chenango General Term (1848), 3 Barb. 341; Bloom v. Bur dick, Supreme Court (1849), 1 Hill, 131 ; Ackley t. Dygert, Supreme Court, Monroe General Term (1860), 33 Barb. 176. For a history of the law relating. to proceedings for sale of decedent's real estate see the following cases : Ferguson v. Broome, 1 Bradf. 10 ; Moore v. Moore, 14 Barb. 28. What Dehts Will Not Authorize Sale. The statute does not authorize the sale of a decedent's real estate for the payment of the expenses of the administration, onr for allowances made in the contest of a will. For Payment of Debts and Funeral Expenses. 5 Estate of Meahim, Kings County Surrogate's Court (1884)/ 5 N. Y. Civ. Proc. 421 ; s. c„ Smith v. Meakini, 2 Dem. 129. Such Costs and allowances cannot be paid out of a sale of the decedent's real property althongli the decree granting costs expressly directed that the same be paid by the administrators, when appointed, as a part of the expense of administration. Smith V. Meahim, supra. The real estate of an intestate cannot be sold to pay the ex- penses of administration upon the estate, and an administra- tor's petition for sale, showing nothing against the estate, except- ing the expenses incurred in administering, will be denied. Estate of Cornwall, !New York County Surrogate's Court (1869), 1 Tucker, 250. The Supreme Court has no jurisdiction to decree that any- costs of actions for admeasurement of dower and other litiga- tions should be paid out of the proceeds of a sale of the real estate under this title, and its direction for such payment will not be considered res adjudicata, especially as against a credi- tor of the decedent who was not a party to such suits. It seems that where an estate is thus situated the Surrogate's Court has a right upon its own motion to appear in the State courts and be heard in opposition to the decree obtained in the manner aforesaid. Estate of Wilcox, Madison County Surrogate's Court (1886), , 11 Civ, Proc. 115. One who has recovered a judgment against an executor, has no right to have the amount of his costs included in the sum allowed to him in proceedings before the surrogate to mortgage the decedent's real estate for the payment of debts, but only the face of the judgment, notwithstanding the action was com- menced in the life-time of the decedent, and revived by the executor. Burnham v. Harrison, Westchester.County Surrogate's Court (1878), 3 Eedf. 345. A n administrator, who has no funds of the estate in his hands for payment of debts, is not authorized to pay alleged debts which are barred by the statute of limitations, and then obtain an order for sale of the decedent's real estate to reimburse him- self for such debts paid by him. Gilchrist v. Bea, Chancery (1841), 9 Paige, 66. 6 DisposiTioK OF Decedent's Eeal Estate A mother's charge for maintaining her children after her husband's death is not to be construed into a debt which can allow the surrogate to sell the father's real estate in order to satisfy it. Woodruffs. Oooh, Chancery (1834). 2 Edw. Ch. 259. A judgment-creditor of the decedent cannot institute pro- ceedings for sale of any real estate on which his judgment is a lien, nor can he prove the judgment debt for the purpose of sharing in the distribution of the proceeds of the sale of the real estate which has been sold subject to his judgment. He must revive his judgment and sell upon an execution. Butler V. Emmet, Chancery (1839), 8 Paige, 12. The claim of an attorney for services rendered in a partition action instituted by the committee of a deceased lunatic cannot be allowed or paid by the Surrogate's Court in a proceeding under this title, and the remedy of the attorney is against the committee personally and not against the fund which he rep- resents. Rowing v. Moran, Westchester County Surrogate's Uonit (1887), 5 Dem. 56. Funeral Expenses Include Headstone. It was held that the term "funeral expenses" as used in Laws 1874, chapter 267, include the cost of a suitable head- stone to be erected at the grave of the deceased, and that it was proper to pay for such a headstone out of the proceeds of a sale of the decedent's real estate, but an expenditure of $500 in erecting a headstone when the estate did. not exceed $8,000 was held too great to be allowed as part of the funeral expenses. Owens V. Bloomer, Supreme Court, Third Department (1878), 14 Hun, 296. See section 2749, supra. Sale Authorized for Funeral Expenses. Where the facts required to be shown by section 2752 of the Code of Civil Procedure appeared in the proceeding, but it did not appear that there were any claims against the estate except the cost of decedent's funeral expenses, it was held that the eoui-t was authorized under the statute to direct a sale of real estate for the payment of funeral expenses alone. Estate of King, Surrogate's Court, Kings County (1886), 10 Civ. Proc. 175. For Payment or Debts and Funeral Expenses. 7 Statutory Lien of Judgment. "Where a judgment has ceased to be a specific lien on the property of a decedent, there is still a statutory lien under this title upon the property, which may be enforced by proceedings in Surrogate's Court for sale of the real estate to pay debts. Plait V. Plait, Supreme Court, General Term, First Depart- ment (1888), 15 N. Y. State Rep. 317-322. (Distinguishing Plait V. Plait, 105 N. Y., 488 ; 8 N. Y. State Rep. 77.) A. judgment recovered against executors in an action com- menced against their decedent and revived against them is not a lien upon real property within section 2750 of the Code of Civil Procedure ; the lien referred to in that section is one that attached during the life-time of the decedent. Estate of Rosenfield, New York County Surrogate's Court (1886), 10' Civ. Proc. 201. Extent of Heirs' Liability for Ancestor's Debts. The heirs and devisees of a deceased debtor are liable for all his debts to the extent of the lands descended or devised, pro- vided the personal estate be insufficient or has been previously exhausted. Ferguson v. Broome, New York County Surrogate's Court (184:9), 1 Bradf. 11 ; Jeweit v. Keenholts, Supreme Court, Albany General Term (1853), 16 Barb. 193. Testamentary Powers of Sale — Wills. The court is powerless to make the decree if there is a devise or valid power of sale under section 2749 of the Code of Civil Procedure. Per Rollins, Surrogate, Dennis v. Jones, New York County Surrogate's Court (1882), 1 Dem. 81-83. The real estate of a testator which is subject to a valid power of sale for the payment of debts, cannot be sold for the pay- ment of debts and funeral expenses under this title unless it appears that it is not practicable to execute the power and that the creditor has relinquished the same. Coogan v. Ochershausen, New York Superior Court, Special Term (1886), 11 Civ. Proc. 315 ; s. c, 55 Super. Ct. (J. & S.) 286. (See s. c, 18 N. Y, State Rep. 366, where this judgment was affirmed by the General Term [1888], upon the opinion of the Special Term judge.) 8 Disposition op Decedent's Real Estate "Where testator's estate consisted solely of real property, and by his will he gave certain legacies, directed the payment of his debts and funeral expenses, and provided that his entire estate should be sold and turned into cash as soon after his death as his executors deemed advisable, it was held that under such will the real property was " subject to a valid power of sale for the payment " of debts within the scope of section 2749 of the Code of Civil Procedure, and in absence of proof of the impracticability of executing the power, and its relinquishment by the creditor, not subject to disposition under this title. Dennis v. Jones, New York County Surrogate's Court (1882), 1 Dem. 81. (Distinguishiug Russell v. Russell, .36 N. Y. 581, on ground that in that case the power of sale was for sole benefit of legatees, and not general.) To create a charge on the real estate there must be either ex- press directions to that effect or the intention thus to charge it must be implied from the whole will taken together. An in- tention to charge the payment of debts upon a devise of real estate will not be construed from the use in the will of formal words, or the presence of commonly-employed phrases. Where ' the opening words of the will were "• after all my lawful and just debts are paid, I give, etc.', to my wife," etc., it was held that the instrument was devoid of any expression or declaration by the testator of intention as to the mode of payment of his debts, and that the real estate of the decedent was not thereby charged with such payment. City of Rochester v. Smith, Court of Appeals (1888); 17 N. Y. State Eep. 146; s. o., Matter of City of Rochester, 110 N. Y., 159. (Eeversing Hamilton v. Smith, 12 N. Y. State Rep. 711.) A decedent provided in his will that after his debts and funeral expenses were paid by his executors, that certain specific legacies should be paid, and devised the rest, residue and re- mainder of his real and personal estate, " after the payments, devises and bequests aforesaid," to his executors in trust, author- izing them to mortgage or incumber such real and personal estate for carrying the provisions of his will into efiEect. It was held that by the provisions of the will the real estate was expressly charged with the payment of his debts and subject to a valid power of sale for that purpose. A petition for sale of such real estate by a creditor was accordingly dismissed. Estate of Rosenfield, New York County Surrogate's Court (1886), 10 Civ. Proc. 201 ; s. c, 5 N. Y. State Eep. 339. Foe Payment of Debts and Funeral Expenses. 9 A devise in a will was as follows : " After all my lawful debts are paid and discharged I give, devise and bequeath all my estate, real, personal or mixed, to my beloved wife." It was held that testator's debts were thereby charged on the real estate devised, but that the existence of these debts did not prevent the vesting of the estate in the devisee. That the gift of land was to the wife individually and not as executor, and that she had the right as devisee to convey the same, or that she would be entitled to receive the proceeds of the sale, but that if the personal property of the decedent was insufficient to pay his debts, she would be obliged to apply the proceeds of the real estate to such payment, and that the purchaser from the devisee would be bound to look to it that the moneys were so applied. White V. Kane, New York Superior Court, General Term (1885), 7 N. Y. Civ. Proc. 367; s. c, 51 Super. Ot. (J. & S.) 395; 1 How. Pr. (N. S.) 383. A devise of " all the rest and residue " of the testator's real and personal estate " not hereinbefore disposed of," after the payment of debts was held to render the legacies previously given under the will a charge upon the real estate, the person- alty being insufficient. Rafferty v. Clark, New York County Surrogate's Court (1851), 1 Bradf. 473. Where the disposing clause of the testator's will commenced : " After all my just debts are paid," and then contained specific devises of decedent' s property, it Avas held that this was within the exception provided by the Code and deprived the court of jurisdiction to dispose of the property under this title. Smith V. Coup, Westchester Surrogate's Court (1888), 6 Dem. 45. (Citing 2 Jarm. on "Wills, 5th Am. ed., 535-6; Matter of Fox, 53 N. Y. 530; Matter of Rosenfield, 5 Dem. 251.) Note. — See, however, (Hiy of Rochester v, Smifh, swpra. A power in a will to sell real estate of the testator does not carry with it the power to mortgage. Per Coffin, Surrogate, Matter of Davids, Westchester County Surrogate's Court (1886), 5 Dem. 14-18. The mere inadequacy of the personal estate of the testator to pay his debts at the time of his decease will not be a sufficient circumstance from which to declare an intention by the testator to charge the real estate with the payment of his debts. City of Rochester v. Smith, Court of Appeals (1888), 17 N. Y. State Kep, 146. (Keversing s. c, reported as Hamilton v. Smith, 13 N. Y. State Kep. 711.) 2 10 Disposition of Decedent's Ebal Estate It was held that a clause in a will by which the testator directed that when his farm was sold the proceeds should be divided among tlie legatees in a specified manner, by necessary implication gives the executors a general power to sell, although they are not named in the will as donees of such power. Borland Y. Borland, Supreme Court, Dutchess Special Term (1847), 2 Barb. 63. A testator directed in his will that all his just debts and funeral expenses be paid as soon as practicable after his decease, and gave the rest, residue and remainder of his estate to the executors in trust. It was held that the will made, by legal efEect, the payment of debts a charge upon his real estate ; that this charge was an implied and not an express one, and that the executor of the will who was the devisee in trust had an implied power of sale for the purpose of paying the debts, and, therefore, the property could not be sold for payment of debts under this title. It was also lield that a purchaser from the executor acquired a good title, and was under no obligation to see to the proper disposition of the purchase-money. Coogan v. Ochershausen, New York Superior Court, Special Term (1886), 11 Civ. Proc. 315. (See s. C, 18 N. Y. State Eep. 366, where General Term affirmed opinion of Special Term [18S8].) When a testator devises his real property to one for life, with a direction that, after the death of the person to whom the life estate is devised, the same be sold and the proceeds divided, such property does not constitute legal assets of the estate during the life-time of the cestui que vie. Carman v. Brown, Westchester County Surrogate's Court (1886), 4 Dem. 96. Where it appears from the terms and provisions of a will that the testator intended that his debts should be paid from his personal property, and that his real estate should be charged with only the amount ot the incumbrances existing thereon, a clause conferring upon his executors authority to sell and dis- pose of his real estate, at such time or times and in such man- ner as they shall deem advantageous, and directing them to dispose of the proceeds as thereafter provided, does not con- vert the real estate into personal property for all purposes, but only for the purpose of division, and the proceeds arising therefrom should be treated as personal property liable for the payment of the testator's debts. Matter of Bodge, Supreme Court, General Term, Third De- partment (1886), 40 Hun, 443. Foe Payment of Debts and Funeral Expenses. 11 Seisin of Decedent. The decedent, in 1862, entered into an oral agreement with his niece and her husband whereby all were to occupy and use in common his farm and personal property thereon nntilr his death, decedent to be supported by them during his life, when the farm and the remaining personal property were to belong absolutely to the niece. The niece and her husband failed to carry oiit their agreement, and between 1878 and 1881, dece- dent resided with and was supported by the petitioner for sale of his real estate, his sister. He died in 1882, leaving a will wherein this agreement was recited, and devised the farm to his niece for life, the remainder to her children, and nominated her as sole executrix. The surrogate referred to a jury at County Court the issue whether decedent was seized of the farm at the time of his death, and a verdict in favor of peti- tioner was rendered. The contestants, the legatees under the will, moved for a new trial on the grounds that the verdict was contrary to evidence and upon errors alleged in the charge to the jury, which motion was denied. Matter of Rider , Chautauqua County Surrogate's Court (1888), 6 Dem. 473. Decedents Estate Not Subject to Execution. Executions to sell real estate cannot be issued after defend- ant's death without an opportunity for the heirs and terre- tenants to be heard, and the judgment must be revived against them. But where the execution was issued and partly executed, the subsequent death of the debtor does not affect the process nor prevent its complete execution by sale of the property. Wood v. Mooreliouse, Court of Appeals (1871), 45 N". Y. 368. 12 Disposition of Decedent's Ebal Estate CHAPTJER II. PERIOD OF LIMITATION. When Application to he Made. Section 2750. (Amended 1885.) At any time within three years after letters were first duly granted within the State, upon the estate of a decedent, an executor or administrator, whether sole or joined in the letters with another, other tlian a tempo- rary administrator ; or a creditor of the decedent, other than a creditor by a judgment or a mortgage, which is a lien upon the decedent's real property ; may present to the Surrogate's Court from which letters were issued, a written petition, duly verified, praying for a decree directing a disposition of the decedent's real property, or interest in real property, specified in the last section, or so much thereof as is necessary for the payment of his debts or funeral expenses, by the mortgage, lease or sale at public or private sale thereof ; and that the parties named in the petition and all other necessary parties as prescribed in the subsequent sections of this title, may be cited to show cause why such a decree should not be made. No Limitations Prior to Statute. Before the Revised Statutes no period was prescribed by law in which application to sell a decedent's real estate must be made, nor was there any express provision for parties in interest inter- posing the statute of limitations. Per Curiam, Mead v. Jenkins, Supreme Court, General Term, Second Department (1883), 29 Hun, 253. Object of Limitations. The object of this statute was to fix a certain period after which bona fide purchasers would be protected, and actions might be maintained against heirs and devisees. For Payment of Debts and Funeral Expenses. 13 Slocnm V. English, Court of Appeals (1875), 63 N. Y. 494; Jewett V. KeenhoUs, Supreme Court, Albany General Term (1853), 16 Barb. 193; Parkinson t. Jacohson, Supreme Court, General Term, Second Department (1879), 18 Hun, 353; Smith v. Soper, Supreme Court, General Term, Second Department (1884), 33 id. 46. Operation of the Statute. The statute of limitations ceases to run on the institution of the proceeding to sell real estate or on tlie return of the order to show cause. Farrington t. King, New York County Surrogate's Court (1850), 1 Bradf. 183. A single day after the expiration of the three years from the time of granting letters, the right of the administratrix to peti- tion is lost. Estate of Cornwall, New York County Surrogate's Court (1869), 1 Tucker, 351. After three years the land is discharged of such lien and the iona fide purchaser takes the same free and discharged from all debts. White V. Kane, New York Superior Court (1885), 7 N. Y. OiT. Proc. 367-71; s. C, 51 Super. Ct. (J. & S.) 395; 1 How. Pr. (N. S.) 383. By the provisions of section 2750 of the Code of Civil Pro- cedure a statutory lien is created, running with the land for three years. This lien covers lands in the hands of devisees and purchasers from devisees. HydeY. Tanner, Supreme Court, Dutchess Special Term (1849), 1 Barb. 75. The right to institute proceedings for a sale of the deced- ent's real estate is restricted to three years after the granting of letters, but it is not extended indeiinitely so as to allow the proceedings at any time within such three years, regardless of the period that may have elapsed previously. Church T. Olendorf, Supreme Court, General Term, Fourth Department (1888), 49 Hun, 439. It was held under the former statute that the executor or administrator must make the application within a reasonable time and nine years was held to be a bar to it. Mooers v. White, Chancery (1833), 6 Johns. Ch. 360. 14 Disposition of Decedent's Eeal Estate A testator, who died in 1869, devised and bequeathed to his wife all his personal property remaining after the payment of his debts, and also the use, benefit and occupation of a farm, for the time and so long as she would remain his widow, and in case she should not marry again, then he devised and be- queathed said farm to her in fee. By a subsequent clause, it was directed that in case of his wife's re-marriage after his decease, he gave the farm to his daughter in fee. On April 19, 1870, one Thompson, as special guardian, pursuant to an order of the Supreme Court, conveyed the interest of the infant daughter in the said farm to one Coulter, by a conveyance which was duly recorded, and on the same day the widow convej'ed her estate and interest therein to the same person. On Febru- ary 3, 1879, the premises were bought by the special guardian, individually, at a sale had under the foreclosure of a mortgage given to him as special guardian to secure a portion of the pur- chase-money. On February 6, 1879, the widow re-married. On December 4, 1882, proceedings were instituted in a Surrogate's Court, by a creditor of the deceased, to have the said farm sold to pay the debts of the deceased testator. It was held that the statute of limitations was no bar to the claim of the creditor or to his instituting the proceedings; that the said farm was, at the time the proceedings were in- stituted, vested in the testator's daughter ; that the sale by the court of the possible interest of the daughter in the farm, during the life-time and before the re-marriage of her mother, was invalid because both unauthorized and forbidden by the statute, which does not authorize the sale of such a possibility but of lands whereof the infant is seized; that chapter 211 of Laws of 1873, forbidding the sale of the real estate of a deceased person for the payment of his debts, when it has passed from the heir or devisee by conveyance or otherwise to a purchaser in good faith, unless application for such sale be made to the surrogate within three years after the granting of letters did not affect this case. Matter of Dodge, Supreme Court, G-eneral Term, Third De- partment (1886), 40 Hun, 443. Computation of Time. Where in proceedings by a creditor for the sale of the real es- tate of a decedent, the statute of limitations is set up as a bar to the creditor's claim, as by the provisions of the statute author- izing the proceedings (§ 72, chap. 460, Laws of 1837, as amended by chap. 172, Laws of 1843, and chap.. 298, Laws of 1847), they cannot be commenced until after the accounting of the executor or administrator ; the time between the death of FoK Payment of Debts and Funeral Expenses. 15 the decedent and the accounting of the executor or adminis- trator should not be included as' part of the time limited. Mead y. Jenkins, Court of Appeals (1884), 95 N. Y. 31. In 1866, one R., a resident of New York, died in Mexico, leaving a widow and an infant heir. In 1868 the interest of the infant in certain real estate inherited from decedent was sold under order of the court and a purchase-money mortgage given to the special guardian of the infant, which mortgage was foreclosed, and the premises purchased by one D., who refused to complete his purchase on the ground that a claim still existed unpaid against the estate of R., and that no letters of administration had been issued on said estate. It was held that he was properly compelled to complete the purchase, as the time mentioned in chapter 211 of the Laws. of 1873, within which to make an application to sell land to pay debts had elapsed, and this land could not then be sold to pay debts under said act. Parkinson t. Jacobson, Sunreme Court, G-eneral Term, Second Department (1879), 18 Hun," 353. On February 11, 1871, a simple contract debt became due from one J. to appellant. On March 19, 1871, J. died, and on April 14, 1871, letters of administration were granted on his estate. On February 6, 1880, appellant instituted proceed- ings in Surrogate's Court for sale of decedent's real estate which had descended to respondents. It was held that appellant might institute such proceedings at any time before his right to maintain an action against the heirs-at-law was barred by the statute of limitations. That as the statute (2 E. S. 113, § 56) prevented any action being brought against the heirs within three years from the death of their testator, said three years constituted no part of the period of limitation, and that the action might be brought at any time within nine years from the death of the debtor, and that the proceedings were not barred by the statute. Mead v. JenMns, Supreme Court, General Term, Second De- partment (1882), 27 Hun, 570; s. c, 29 id. 253. When the decedent died, October 1, 1868, indebted to C, on contract for $300, which became due April 1, 1868, leaving a will upon whicli letters testamentary were issued on October 19, 1868, and in June, 1871, a judgment for this claim was recovered against the executors, who in July, 1880, voluntarily rendered their first account, showing an insufficiency of assets to pay alleged debts, and on May 17, 1886, the judgment creditors 16 Disposition of Decedent's Eeal Estate instituted proceedings for disposition of the decedent's real estate, upon objection by the devisees, it was held that C.'s claim was barred by the statute of limitations, his remedy against the real property gone, and that the application should be denied. The surrogate criticised the Court of Appeals decision in Mead v. Jenkins^ supra, and refused to follow it. It seems that the limitation contained in section 2760 of the Code of Civil Procedure prescribing the time within which a creditor may present a petition for the disposition of real property under this title, and the suspension by section 1844, of the right of action therefor against the heirs and devisees during the same three years, — have no such connection as will jiistify a construction whereby the period of such suspension should be deemed to enlarge that of the limitation mentioned. Carman v. Brown, "W^estchester County Surrogate's Court (1886), 4 Dem. 96. The three years' limitation of section 2750 of the Code of Civil Procedure as to creditors' proceedings, applies to a case where letters had been issued more than three years before September 1, 1880, and the personal representatives had not accounted to the surrogate under the Revised Statutes, before that date, since in that case no right had accrued to be saved by Laws of 1880, chapter 245, section 3, or by section 3352 of the Code. Chapter 4 of that Code has no application to such proceedings. U. 8. Life Ins. Co. v. Jordan, New York County Surrogate's Court (1881), 5 Kedf. 207. Beviving Debt Barred hy Statute. "Where in a proceeding for distribution of funds, a counter- claim was interposed to a judgment against the executor, con- sisting of a note made by the creditor which was barred by the statute of limitations, and was claimed to have been revived by a letter of the creditor, stating he expected to allow said note and interest if he could have a fair settlement of his ac- count against the deceased, and it appeared that part of the claim in which the judgment was recovered was disallowed because outlawed, and that the note had been interposed as a counter-claim in said action, and disallowed on account of its being outlawed, it was held that such letter did not take the note out of the statute, as the promise was conditional and not accepted, and that the creditor's claim should not be allowed. Estate of Meakim, Kings County Surrogate's Court (1884), 5 N". Y. Civ. Proc. 421. For Payment of Debts and Funeral Expenses. 17 Proceedings for sale of real estate for payment of a debt of the decedent cannot be maintained where an action would not lie on the original indebtedness, and the obtaining of a judg- ment against the executor, who was also the devisee, before the debt, was barred by statute, will not operate to enable the credi- tor to maintain the proceedings; the judgment is merely evi- dence of the debt, and the debt must be established in the pro- ceedings. Raynor v. Gordon, Supreme Court, General Term, Second De- partment (1880), 23 Hun, 264. When Limitation Available as a Defense. The heir may set up the statute of limitations to a debt sought to be established against the real estate. A recovery of judg- ment against the representative does not prevent the running of the statute. Ferguson v. Broome, New York County Surrogate's Court (1849), 1 Bradf. 11. (See also Renwick v. Remoick, New York County Surrogate's Court [1850], id. 234; Skidmore v. Romaine, New York Surrogate's Court [1852], 2 id. 122; Warren v. Poff, New York County Surrogate's Court [1857], 4 id. 260.) The judgment creditors of the decedent may set up the statute of limitations as a defense against the petitioner's claim, although the devisee himself does not oppose the application. Raynor v. Gordon, Supreme Court, General Term, Second Department (1880), 23 Hun, 264. Creditor'' s Time to Apply Extended. Section 2751. (Amended 1887.) The time, in which an action is pending in a court of record, between a creditor and an executor or administrator of the estate, is not a part of the time limited in the last section, for presenting a petition, founded upon a debt, which was in controversy in tlie action ; if the creditor has, before the expiration of the time so limited, filed, in the clerk's office of the county where the real property is situated, a notice of the pendency of the action specifying the names of the; parties, the object of the action and, if the credit tor's debt is made the foundation of a counter-claim, the nature of the counter-claim ; containing a description of the property in the county to be affected thereby ; and stating that it will be held, as security for any judgment obtained in the action, A notice so filed must be recorded and indexed, and may be 3 18 DisPOSiTioK OF Decedent's Eeal Estate cancelled, as prescribed, with respect to the notice of pendency of an action, in article nine of title lii'st of chapter fourteen of this act. It may also be cancelled in like manner, or a specified portion of the property affected thereby may be discharged from the lien thereof, by the order of the court in which the action is pending, made upon the application of a person having an interest in the real property, upon notice to the creditor and upon such terms as justice requires. "Whenever an executor, administrator or creditor of a deceased person shall have com- menced, or shall hereafter commence, an action in any court of competent jurisdiction of this State for the purpose of setting aside any fraudulent conveyance of, or incumbrance upon, any real estate of such deceased person, and such action shall have been decided in favor of such executor, administrator or credi- tor, such executor, administrator or creditor may, at any time within three years after the final determination of such action, have and maintain an action or proceeding against the proper parties, in any court of competent jurisdiction of this State, for a sale of such real estate, and for a distribution of the proceeds of such real estate among the creditors of such deceased person and other persons entitled to the same as may be directed by the judgment in such action. Disability of Creditor. The suspension of the running of the statute of limitations is not confined to the causes specified in the statute, but may occur in other causes of the disability of the creditor to prose- cute. Jennings v. Jones, Steuben County Surrogate's Court (1876), 2 Eedf. 95. FoK Payment of Debts and Funekal Expenses. 19 CHAPTER III. THE PETITION AND ITS REQUISITES. What the Petition must Contain. Section 2752. The petition must set forth the following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them : 1. The unpaid debts of the decedent, and the name of each creditor, or person claiming to be a creditor ; and the amount of the unpaid funeral expenses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. 2. A general description of all the decedent's real property, and interest in real property, within the State, which may be disposed of as prescribed in this title ; a statement of the value of each distinct parcel ; whether it is improved or not ; whether it is occupied or not ; and, if occupied, the name of each occu- pant. Where the petition describes an interest in real prop- erty, specified in section 2749 of this act, the value of the interest must be stated, and also the value of, and the other particulars, specified in this section, relating to, the real prop- erty to which the interest attaches. 3. The names of the husband or wife, and of all the heirs and devisees of the decedent, and also of every other person claiming under them, or either of them, stating who, if any, are infants ; the age of each infant, and the name of his gen- eral guardian, if any ; and also, if the petition is presented by a creditor, the name of each executor or administrator. 4. If the petition is presented by an executor or administra- tor, the amount of personal property which has come to his hands, and those of his co-executors or co-administrators, if 20 Dispo&iTioisr of Decedent's Keal Estate any ; the application thereof, and the amount which may yet be realized therefrom. Filing Petition for Disposal. The petition must be filed within three years after gi'anting of letters in order to authorize the surrogate to direct a sale of the real estate, and when the administrators first appointed are removed and others appointed in their place, the petition must be filed within three years from the issuing of the first letters. Slocum V. English, Supreme Court, G-eneral Term, Third Department, 3 Hun, 78. Upon the filing of a petition the surrogate gains jurisdiction of all parties regularly brought into court. Farrington v. King, New York County Surrogate's Court (1850), 1 Bradf. 182. Application iefore Debts Due. The application to dispose of real property may be made before the debts are due, provided there are not sufficient per- sonal assets. Mooers v. White, Chancery (1822), 6 Johns. Ch. 360. Defective Petition. An account of debts, stating neitlier the names of creditors, the amounts due them severally, nor the consideration of in- debtedness, would not confer jurisdiction upon the surrogate. Atkins V. Kinnan. SuiDreme Court (1838), 20 Wend. 241. A petition for disposition of real estate under thistitle which does not disclose the age of the infant child "of decedent, or whether the property sought to be disposed. of is or is not iniproved, or whether it is or is not occupied, 'and while speci- fying certain debts and enumerating certain creditors, neglects to state whether the debts enumerated constitute all the indebt- edness of the deceased, or whether the creditors enumerated include all the creditors of the deceased is defective, and such omissions constitute a jurisdictional defect. Dennis v. Jones, New York County Surrogate's Court (1882) 1 Dem. 81-84. * ^ '' The allegations prescribed by section 2752 in the petition are jurisdictional, and a provision in an order of reference For Payment of Debts and Tunebal Expenses. 31 amending such petition by supplying a material omission is ineffectual. Dennis v. Jones, supra. If the petitioner omit to set forth in the petition any facts required by the statute, the Surrogate's Court does not acquiie jurisdiction, and no valid decree can be entered for a sale of the decedent's real estate. Matter of German BanTc, Supreme Court, Greneral Term, Fifth Department (1886), 39 Hun, 181. A petition which omitted to state that an inventory had been filed, or that there were debts which the personal property was insufficient to pay, was held not to give the surrogate jurisdic- tion under the Revised Statutes, and a sale under such defec- tive petition was not protected by the act of March 23, 1850. (Laws 1850, chap. 82.) AcTcley v. Dygert, Supreme Court, Monroe Gen'feral Term (1860), 3.3 Barb. 176. If the petition is defective in any of the requisites specified in the statute the surrogate does not acquire jurisdiction. Ackley v. Dygert, supra. The jurisdiction of the surrogate depends upon the petition and not upon extrinsic matters. Woods v. McChesney, Supreme Court, Onondaga General Term (1863), 40 Barb. 417. "Where the petition failed to mention the name of an heir-at- law and no notice was given him of the proceedings, the sale was held to be invalid as to such heir, and it was also held that the omissions were not cured by chapter 82 of the Laws of 1850. Jenkins v. Young, Supreme Court, General Term, Fifth De- partment (1885), 35 Hun, 569. A creditor's petition which fails to state the nature of the land, or the names of the occupants, or the ages of the heirs of the decedent, is fatally defective and will be dismissed on motion. Mead v. Sherwood, Westchester County Surrogate's Coiirt (1879), 4 Eedf. 353. 22 Disposition of Decedent's Eeal Estate A Surrogate's Court will deny a petition for the sale of decedent's real estate to pay debts, where any portion of such property is, by the will, expressly charged with the payment thereof. Smith V. Coup, "Westchester County Surrogate's Court (1888), 6 Dem. 45. Sufficiency of Petition. A petition for sale, presented by the executor or administra- tor, accompanied by an account of the decedent's personal estate and debts, is sufficient to confer jurisdiction upon the surrogate. Jackson v. Robinson, Supreme Court (1830), 4 Wend. 436; Jachson v. Irwin, Supreme Court (1833), 10 id. 441 ; Jack- son V. Grawfords, Supreme Court (1834), 12 id. 533. The petition should contain a description of all the real estate of which the decedent died seized. Matter of Igglesden, Westchester Surrogate's Court (1879), 3 Redf. 375. A petition under section 2750 of the Code of Civil Pro- cedure is not defective by reason of its omission to state when the letters testamentary were issued, when it avers their issuance, and states facts showing that the proceeding was com- menced within three yeai-s after they were issued. //* re Haig's Estate, New York County Surrogate's Court (1888), 3 N. Y. Supp. 285-6; s. o., 17 K Y. State Eep. 827; 6 How. 454. In a creditor's petition in these proceedings, one who has pur- chased the property at a referee's sale in partition is a " person claiming an interest" in the property under an heir, and a necessary party who must be named both in the petition and citation. Karmmer v. Ziegler, New York County Surrogate's Court (1.S83), 1 Dem. 177. Where the petition states facts showing clearly that an attempt to mortgage or lease would be idle, because of the heavy incumbrances on the property, and the inadequate in- come derived therefrom,' it was held proper for the petitioner to simply ask for a sale of the real property in question. Matter of Dolan, New York County Surrogate's Court (1881), 2 Dem. 611; 26 Hun, 46; 88 N. Y. 309. FoK Payment of Debts and Funeral Expenses. 33 It is not necessary for a petition to contain an allegation that the property sought to be disposed of is not " subject to a valid power of sale for the payment " of debts or funeral expenses. Matter of Haig, Kew York County Surrogate's Coiirt (1888), 3.N. Y. Supp. 385-6; s. c, 6 Dem. 455; 17 N. Y. State Eep. 827. Where a petition described several parcels of real estate, and alleged upon petitioner's information and belief that they were all the real estate of the decedent, it was held to be a sufficient allegation, and that it was unnecessary to make the allegation in positive and nnquahfied terms. Matter of German Bank, Supreme Court, General Term, Fifth Department (1886), 39 Hun, 181. The omission to describe a parcel of real property does not bear on the question of jurisdiction and cannot seriously affect the rights of other creditors or the heirs and devisees of the decedent. Matter of German Bank, supra. If the petitioner is not advised that there are unpaid .funeral expenses, or is informed of their existence but is ignorant of their amount, and of the person to whom they are due, he may omit to make any reference to the same in the petition. The statute does not require a negative averment. Matter of German Bank, supra. An executor's petition which states that " the amount of personal property which has come into his hands as appraised by the inventory is," etc., sufficiently states the amount of personal property which actually came into his hands. A statement in the petition of the amount received and that it is still in his hands unpaid and unapplied, sufficiently shows " the application " of the moneys received. Richmond v. Foote, Supreme Court, General Term, Third De- partment (1870), a Lans. 244. It is enough if the necessary facts appear from the papers on which the surrogate's order is founded, and where three petitions were made the basis of the proceedings, it was held that they should be taken together as part of the same proceeding. The petition may refer to a former petition filed in the same matter for a statement of the necessary facts. Richmond v. Foote, supra. 24 Disposition of Decedent's Keal Estate It is sufficieDt if the petition be verified before a justice of tlie peace. Richmond v. Foote, supra. Petition iy Creditor of Decedent. The mere fact of obtaining a judgment against the executor, who is also the devisee, before an action was barred by the statute of limitations, will not enable the creditor of the de- cedent to maintain these proceedings. Raynor v. Gordon, Supreme Court, General Term, Second Department (1880), 23 Hun, 364. A creditor may compel an executor with power of sale, to sell real estate for payment of debts, on citation of the proper and necessary parties. Code of Civil Procedure, section 2804; Bennett v. Grain, Su- preme Court, General Term, Fourth Department (1886), 4 Is. Y. State Eep. 158-161. Proceedings to sell real estate for payment of the debts of a decedent cannot be maintained where an action would not lie upon the original indebtedness. Raynor t. Gordon, supra. Under section 59, 3 Revised Statutes, 196 (5th ed.), a credi- tor's petition must comply with the requirements of a petition by an executor under section 3, except as to the statement of of the amount of the personal property of the deceased, the application thereof, and the outstanding debts. Mead v. Sherwood, Westchester County Surrogate's Court (1879), 4 Eedf. 352. It was held that under Laws of 1837, p. 536, the surrogate would make the sale upon the petition of the creditors, although all the administrators have not united in making and returning an inventory of the estate. Woods V. McGhesney, Supreme Court, Onondaga General Term (1863), 40 Barb. 417. A creditor who has assigned all interest in a debt against ti decedent to a third party cannot present a petition for dis- posal of the decedent's real property for the payment of such debt ;_ but the assignee of the debt, who is the real creditor, must institute the proceeding in his own name. Butler V. Emmet, Chancery (1839), 8 Paige, 13. For Payment of Debts and Funeral Expenses. 25 When the petition is made by a creditor, the Surrogate's Court acquires jurisdiction if the petitioner sets forth any one item of indebtedness due to him from the decedent, stating the amount and to whom the same is owing. Matter of German Bank, Supreme Court, General Term, Fifth Department (1886), 39 Hun, 181. Accounting hy Representative Formerly Reqxiired. It was held that in a proceeding under 1 Revised Laws, for a surrogate's sale to pay debts, it was essential to jurisdiction that a petition should be accompanied by an account of the personal estate, made at the time as well as of the debts, and that a reference to the inventory filed would not answer as a substitute, but if the account was in fact presented, it would suffice though named in the proceeding as an inventory. Also that when the petition was presented at the coming in of the inventory that no other account of the personal estate was required. Bloom V. Burdick, Supreme Court (1841), 1 Hill, 131. Tlie surrogate had no authority under the former practice to order a sale of decedent's real estate when the petition for sale was unaccompanied by a detailed account of the personal estate and debts. Van JVostrand v. Wright, Supreme Court (1843), H. & D. Supp. 260. It was held under the Revised Statutes that proceedings to compel the sale of a decedent's real estate for payment of debts could not be instituted by a creditor until after the executor or administrator had accounted, and that an accounting could not be compelled until after eighteen months from the issuing of letters. Shidmore v. Romaine, New York County Surrogate's Court (1852), 2 Bradf . 122. It was also held under the Revised Statutes that the render- ing of an account by one of several administrators was insuffi- cient to authorize an application to the surrogate, by a judgment creditor, for an order to sell real estate of the decedent, but that the administrators were all bound to account, and it was the creditor's duty to compel them all to account before he has any right to call upon the heirs-at-law for payment. Sandford v. Granger, Supreme Court, Saratoga General Term (1852), 12 Barb. 392. 4 26 Disposition of Decedent's Eeal Estate • Accounting hy Representative Unnecessary. It is no longer necessary to have a settlement of the account of the administrator before making an application to sell I'eal estate, under section 2750 of the Code of Civil Procedure, but it should be done before the proceeds of the sale are distributed in order that any balance of assets may be first applied to the payment of debts. Shute V. Shute, Westchester County Surrogate's Court (1886), 6 Dem. 1-6. Note. — Under the Revised Statutes an accounting by the executor or administrator was absolutely necessary before a creditor could take any steps toward compelling a sale of the decedent's real estate; under the Code of Civil Procedure it is discre- tionary with the surrogate to require such an accounting as a condition precedent to entertaining the application of a creditor for disposal of the real estate of a deceased person. When Executors Should Not Petition. Where the executors presented a petition for disposition of real property under this title, which petition contained all the matter required by the Code to be stated, and it appeared aliunde that such property was devised, in trust for the benefit of decedent's husband during life, to the petitioners, whom the will clothed with authority to sell the same, upon consent of the husband, who was willing to give it, and that there was a deficiency of assets, it was held that the executors should not proceed under the statute, but be left to exei'cise the power contained in the will, and a citation was refused. Matter of Davids, Westchester County Surrogate's Court (1886), 5 Dem. 14; s. c, 5 JST. Y. State Eep. 357. Petition During Pendency of Accounting. Where an application for the sale of a decedent's real prop- erty to pay debts is made, while an accounting by the executor is pending, the granting of such an application should be de- layed until the determination of the accounting proceeding. A decree under this title for the disposition of a decedent's real estate cannot be entered imtil the surrogate shall have been satisfied that all personal property, wliich could have been applied to the payment of his debts has been so applied, and there is no better or more expeditious way of asscertaining the facts in this regard, other than by carrying to a close such pro- ceeding for accounting. Estate of Rosenfield, New York Countv Surrogate's Court (1886), 10 Civ. Proc. 201; s. c, 5 IST. Y. State Eep. 334. For Payment of Debts and Funeral Expenses. 27 "When Proceedings Properly Delayed. Where a creditor institutes a special proceeding under this title for disposal of decedent's real property, and it appears that the property has been already sold, pursuant to a judg- ment of the Supreme Court in proceedings to foreclose a mort- gage on such real property given by the decedent in his life- time, the invalidity of which mortgage is claimed by the petitioner, although the Surrogate's Court is concluded by such judgment of foreclosure, the proceedings should not be dis- missed, but delayed and kept alive until the petitioner has had reasonable opportunity for attacking in another court, this fore- closure and sale. KnicTcerloclcer v. Becker, New York County Surrogate's Court (1885), 4 Dem. 128. Personal Property Exhausted in Legacies. When the executors have exhausted the personal property of the decedent in paying off certain specific legacies, whether they can apply to the surrogate for an order to sell the real estate of the testator to pay his debts, quoere. Corwin v. Merritt, Supreme Courtj Chenango General Term (1848), 3 Barb. 341. Personal Property Must le Applied Before Sale of Realty. The surrogate has no power to order a sale of the real estate of the decedent to pay his debts, until the executors or admin- istrators have applied all the personal estate to that object. Oorwin v. Merritt, supra. When Second Petition Necessary. There is no statutory authority' for an order by the surrogate directing a sale of the decedent's property on the ground, merely, that after the distribution of the proceeds of a former sale, there is not a sufficient sum remaining for the payment of debts, but new proceedings must be instituted in such cases. An order for a further sale based on the former proceedings, and not founded on new petition and order to show cause is void. Achley ^.Dygert, Supreme Court, Monroe General Term (1860), 33 Barb. 176. 38 Disposition of Decedent's Eeal Estate Inqxiiry as to Unknown Facts. Section 2753. If, upon diligent inquiry, any of the matters required to be set forth, as prescribed in the last section, cannot be ascertained by the petitioner, that fact must be shown to the surrogate's satisfaction, aiid the surrogate must thereupon in- quire into the matter, as prescribed in article first of title second of this chapter. If the petition is presented by a creditor, the surrogate may, by order, require the executor or administrator to render such an account or other statement, as he deems necessary for the purpose of the inquiry. For Paymekt of Debts an:d Funeral Expenses. 29 CHAPTER IV. THE CITATION AND PARTIES. When Citation to Issue — Requisites. Section 2754. Where the surrogate is satisfied that all the facts, specified in the last section but one, have been ascertained, as far as they can be upon diligent inquiry, and it appears to him that the debts and funeral expenses, or either, cannot be paid, without resorting to the real property, or interest in real property, he must issue a citation according to the prayer of the petition. If, upon the inquiry, it appears to the surrogate that any heir or. devisee, or person claiming an interest in the prop, erty under an heir or devisee, is not named in the petition, the citation must also be directed to him. Unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present tbeir claims, and the time for the presentation thereof, pursuant to the notice, has elapsed, the citation must be directed, generally, to all other creditors of the decedent, as well as to the creditors named. Section 2518. Where it is prescribed, in any provision of this chapter, that a petition musf*pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constitut- ing a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must set forth in an aflBdavit, the name of each of them, unless the name, or part of 'the name, of one or more than one of them cannot, after dili- gent inquiry, be ascertained by him ; in which case, that fact must be set forth, and the surrogate must, thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his discretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the 30 DisPOSiTiOK OF Decedezstt's Eeal Estate inquiry, that the name of one or more of the persons to be cited, cannot be ascertained with reasonable diligence, the cita- tion may be directed to that person or those persons, by a gen- eral designation, showing his, her, or their connection with the decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons intended. A citation, thus directed, has the same force and effect, as if it was directed to the person or persons intended, by their names ; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them, as if they were named therein. A petition, duly verified, is deemed an afhdavit, within the meaning of this section. Jurisdiction of the Persons of Parties. The jurisdiction of the persons is as essential to the surrogate as jurisdiction of the subject-matter. Bloom V. Burdick, Supreme Court (1841), 1 Hill, 131. Where the statute prescribes the mode of acquiring juris- diction over the person, that mode must be complied with, or the proceeding will be utterly void. Bloom V. Burdick, supra. As proceedings for the sale of the real estate of a decedent to pay debts are hostile to the heirs, the surrogate must have jurisdiction of the persons of all interested parties as well as of the subject-matter of the proceedings, or the sale will be void. Schneider v. McFarland, Court of Appeals (1849), 2 N. Y. 459. (Citing Bloom v. Burdick, 1 Hill, 134, and distinguishing McPherson v. Guliff, 11 Serg. & Rawle, 429; Orignon's Lessee V. Astor, 2 How. 319; Oilman v. Thompson, 11 Vt. 643; Ludlow's Heirs v. Wade, 5 Ohio, 504.) If there is an infant heir of the deceased person for whom no guardian is appointed in the special proceeding, the surro- gate does not acquire jurisdiction. Ackley v. Dygert, Supreme Court, Monroe General Term (1860), 33 Barb. 176. Who are Necessary Parties. All devisees and heirs-at-law of the real estate of the dece- dent must be cited. For Payment of Debts and Fukeral Expenses. 31 Bennett v. Grane, Supreme Court, General Ternij Fourth De- partment (1886), 4 N. Y. State Rep. 158-161. The Revised Statutes did not expressly direct a service of the order to show cause on the legatees of the decedent, and a substaiiial compliance with the provisions thereof was sufficient. A purchaser refusing to complete his purchase, alleging defec- tive title, could not under the Revised Statutes, maintain the objection that the legatees had not been so served with the order to show cause. Matter of Dolan, etc., Court of Appeals (1882), 88 N. Y. 309. (Distinguishing Jordan v. Poillon, 77 N. Y. 518, and reversing In re Dolan, 26 Hun, 46.) Although the Code nowhere expressly requires the executor or administrator to be cited on an application to sell, lease or mortgage real estate by a creditor, it is obviously intended that such officer is one to whom the citation should be directed. Kammerrer v. Ziegler, Kew York County Surrogate's Court (1883), 1 Dem. 177. The Code does not, otherwise than by implication, make the executor or administrator a necessary party to the citation in case the proceedings are instituted by a creditor. Per Spring, Surrogate, Turner v. Amsdell, Cattaraugus County Surrogate's Court (1885), 3 Dem. 19-21. Note. — The safer practice would be to make them parties. Where testator devised his real property to his son for life, remainder to the son's children, should he have any ; but should there be no issue or descendants surviving the son, then to be equally divided among testator's brothers' and sisters' children or issue, it was held that although the son had Hving children, the children of testator's brothers and sisters had a contingent remainder in the property, and were necessary parties to a proceeding to sell real estate for the payment of decedent's debts. Wilson V. White, Court of Appeals (1888), 109 N. Y. 59. (Cit- ing Monarque v. Monarque, 80 N. Y. 325; BaTcer v. Lorillard, 4 N. Y. 257.) The holder of a njortgage upon the property is not a neces- sary party to the proceeding, sincb any disposition made of the property under a decree would be subject to the lien of the mortgage. 33 Disposition' of Decedent's Keal Estate In re Haig's Estate, Ifew York County Surrogate's Court (1888), 3 N. Y. Supp. 285-6 ; s. c, 17 N. Y. State Eep. 827; 6 Dem. 454. It is no objection to a sale of a decedent's real estate for the payment of debts that the heirs are infants. Thompson t. Broom, Chancery (1820), 4 Johns Ch. 619. Although the petitioning creditor claims to be the only credi- tor of the decedent, the citation must contain the general clause, and direction to all other creditors indicated by section 2754of the Code of Civil Procedure, unless it is shown that the executor or administrator has published the legal notice for presentation of claims, and the time for the presentation thereof has elapsed. Kammerrer v. Zeigler, New York County Surrogate's Court (1883), 1 Dem. 177. Necessity of Appointing Guardians for Irifants. A sale of real estate to pay debts is void as against infant heirs for whom no guardian was appointed in the proceedings. Bloom V. Burdick, Supreme Court (1841), 1 Hill, 131. It was held that nnder 1 Revised Laws, 444, section 23, etc., a sale of an intestate' s real estate to pay debts by virtue of a surrogate's order, was void as to infant heirs for whom no guardian had been appointed in the proceeding. Schneider v. McFarland, Court of Appeals (1849), 2 N. Y. 459. These proceedings are jeopardized if not invalidated by the non-appointment of a special guardian for the infant child ot the decedeat, and of the non-appearance of any general guardian to protect the interests of the infant. If the infant was regularly served it might be that the appointment of a special guardian at a later stage of the proceedings would cure such omission. Dennis v Jones, New York County Surrogate's Court (1882), 1 Dem. 81-85. When in proceedings to sell real estate an order was made appointing a guardian for infant heirs, but it did not appear thitt sucii guardian so appointed consented to become guardian or that he acted as such or had notice of his appointment ; but it affirmatively appeared that he acted as counsel for claimant in such proceedings, it was held that even if his appearance for For Payment of Debts and Funeral Expenses. 33 the infants, would have waived a jurisdictional defect in the citation, his consent at least was essential. Stilwell V. Swarthout, Court of Appeals (1880), 81 N. Y. 109. Upon application to sell real estate, if there be an infant heir or devisee, a guardian must he appointed to represent such minor in the special proceedings, although the petition does not show that such infant is an heir or devisee. A person inter- ested in the estate has a right to a day in court, and cannot be divested of his property by simply being ignored. AcTcley v. Dygerl, Supreme Court, Monroe General Term (1860), 33 Barb. 176. It was hold that the surrogate did not obtain jurisdiction in such special proceedings over the infant heirs if no guardians were appointed for them in the proceedings, and in case of omission to appoint such guardians, the whole proceedings would be void as to the infant heirs. Corwin v. Merritt, Supreme Court, Chenango General Term (1848), 3 JBarb. 341. A guardian for infants need not be appointed upon a final application, on which the order for sale is made, where a guardian has already been appointed on a former application in the same matter. Richmond v. Foote, Supreme Court, General Term, Third De- partment (1870), 3 Lans. 244. It is the proper practice, in proceedings in Surrogate's Court to which an infant is a party, for the surrogate to appoint a special guardian for the infant party upon his own motion where no application is made, on the return day of the citation by any person on behalf of the infant for such appointment. Price v. Fenti, New York County Surrogate's Court (1885), 3 Dem. 341. Foreign Administrator Cannot Petition. The holder of ancillary letters of administration cannot in- stitute proceedings under chapter 18, title 5, of the Code of Civil Procedure, for the sale of a decedent's real property for payment of debts and funeral expenses. Estate of Ladd, New York Countv Surrogate's Court (1884), 5 N. Y. Civ. Froc. 50. See also section 2702, Code Civil Pro- cedure. 5 34 Disposition- of Decedent's Eeal Estate Several Administrators Applying. One of several administrators has the right to apply for an order /for the sale of a decedent's real esta-te to pay debts. Jackson v. Robinson, Supreme Court (1830), 4 Wend. 436. All of the representatives should join in the application to the surrogate for an order of sale, and an order allowing part of the administrators to make such sale without the consent or concurrence of the others, is erroneous. Fitch V. WitiecTc, Chancery (1847), 3 Barb. Ch. 161. Defective Citation. When ill proceedings for eale of a decedent's real estate for the payment of debts, the order of the surrogate, directing persons interested to show cause why a disposition should not be made as asked for in the petition, is made returnable in less than the statutorj' time, it shows a want of jurisdiction fatal to its val- idity, and all proceedings founded thereon are void, nor can the rights of infant defendants therein be waived by failure to take objections. Stilwell v Swartlwut, Court of Appeals (1880), 81 ]Sr. Y. 109. The administrator, who was also general guardian for the infant heirs of the intestate, apphed to the surrogate, in his official character as administrator, for leave to sell real estate to pay debts, and obtained an order to sell under which a sale was made, which was subsequently confirmed. 'Eo guardian of the infants was appointed in the proceeding, nor was there any appearance in behalf of the infant heirs. The surrogate also made the order to show cause returnable within a less time than required by statute. It was held that the surrogate could not shorten the time without losing jurisdiction, and that he did not obtain jurisdiction of the subject-matter nor of the persons of the infants. The proceeding and sale was, therefore, adjudged void, and not cured by chapter 82 of the Laws of 1850. Havens v. Sherman, Supreme Court, Kings County General Term (1864), 43 Barb. 636. When Citation Be/used. "When the surrogate is satisfied that the debts and funeral expenses can be paid without resorting to the real estate it is For Payment of Debts and Funeeal Expenses. 35 proper for him to refuse to issue a citation upon a petition presented. Matter of Davids, Westchester County Surrogate's Court (1886), 5 Dem. 14. An administrator applying to a surrogate for leave to sell real estate in order to pay debts, where a decree of foreclosure and sale of the same premises has been had and exists in force, will be restrained by a perpetual injunction. Breevort v. M'Jimsey, Chancery (1833), 1 Bdw. Ch. 551. PvMication of Oitation. When the citation is directed generally to " all otlier credi- tors," the surrogate has authority under the second subdivision of section 2523 to order service of the same by ' publication thereof, and it is customary to order such publication. It was held that under the Eevised Laws of 1813, relative to sale of a decedent's real estate, requiring the order to show cause (citation) against the sale, at a time fixed in the order, not less than six nor more than ten weeks from the time of making the order, to be immediately published for four weeks successively in two public papers, were sufficiently complied with, by four successive weekly publications in two papers, before the day fixed for showing cause. Sheldon v. Wright, Court of Appeals (1851), 5 N. Y. 497. Under the Revised Statutes it was held to be necessary to give the surrogate jurisdiction to make the order of sale, that the order to show cause should be duly published, and if such publication was not made the entire proceedings were coram non judice. Oorwin v. Merritt, Supreme Court, Chenango General Term (1848), 3 Barb. 341, Death of Interested Party. Where a brother of the decedent, a party to the proceeding and referred to in the petition as an heir, died without issue after the commencement of the proceeding, by which death the decedent would have become entitled to a greater interest in the portion of the real estate sought to be disposed of; it was held that it had no effect on the regularity of the pro- ceedings, and that the statute (Code Civil Procedure, § 2778), recognizes the power of the court to vest in a purchase such interest in the estate disposed of as the decedent had at the time 36 Disposmoifr of Decebbitt's Keal Estate of his death, and makes no provision with respect to the dis- position of any estate or interest subsequently acquired. Matter of Haig, New York County Surrogate's Court (1888), 3 N. Y. Supp. 385-6; s. c, 6 Dem. 454; 17 N. Y. State Kep. 827. In an affidavit used in March, 1871, to show service of a citation to show cause why an administrator of the estate of J. should not be appointed, it was stated that " it was reported that said Charles Jenkins was dead by his friends and that his last place of residence could not be ascertained." It was held that this did not justify the surrogate in presuming that he was dead in the proceedings instituted before the surrogate for a sale of real estate. Jenlcins v. Young, Supreme Court, General Term, Fifth De- partment (1885), 35 Hun, 5f)9. Foe Paymekt of Debts akd Funeral Expeitses. 37 CHAPTER V. THE HEARING AND PROOFS. Proceedings Upon the Hearing. Section 2Y55. (Amended 1887.) Upon the return of the citation, the surrogate must proceed to hear the allegations and proofs of the parties. A creditor of the decedent, or a person having a claim for unpaid funeral expenses, although not named in^ the citation may present and prove his debt, and thus make himself a party to the special proceeding. A creditor of the decedent, whose claim is not due, may present and prove his debt, and have the same established upon rebate of legal interest, and thus make himself a party to the special proceeding. A heir or devisee, or a person claiming under an heir or devisee of the property in question, although not named in the citation, may contest the necessity of applying the property to the pay- ment of debts or funeral expenses, or the yalidity of a debt, due, or undue, represented as existing against the decedent or the reasonableness of the funeral expenses, may interpose any defense to the whole or any part thereof; and for that purpose, may make himself a party to the special proceeding. Where such a defense arises under the statute of limitations, an act or admission by an executor or administrator does not prevent the running of the statute, or revive the debt so as to affect in any manner the real property, or interest in real property in ques- tion. Contesting Judgment Against Representative. Section 2756. Where a judgment or decree has been rendered against an executor or administrator, for a debt due from the decedent, the debt is, nevertheless, deemed a debt of the dece- dent, to the same extent, and to be established in the same manner, and, except as prescribed in the next section, subject 38 Disposition- of Decedent's Eeal Estate to the same defenses, as if an action had not been brought thereon. But a judgment or decree, rendered upon a trial upon the merits, is presumptive evidence of the debt upon the hear- ing before the surrogate. Limitation of Recovery — Offsets. Section 2757. The last section is subject to the following exceptions : 1. The debt, for which the judgment was rendered, cannot be allowed, as against the property in question, at any greater sum than the amount recovered, exclusive of costs. 2. An heir or devisee of any of the property in question, or a party claiming under an heir or devisee, may interpose, in reduction of the amount claimed to be due upon a judgment or decree against the decedent, or against the executor or adminis- trator, any payment or counter-claim which. might be allowed to him, or to the. person under whom he claims, in an action founded on the debt. Surrogate Cannot Determine Title. The surrogate has no authority in such proceedings where the title to the lands sought to be disposed of is in controversy, to pass upon the question of title when the lands were prima facie vested in the deceased ; and if the creditors insist upon selling all the interest of the decedent, after proper time allowed to institute a suit to determine the title in another court, the sale will be ordered. Heioitt v. Hewitt, New York County Surrogate's Court (1855), 3 Bradf. 265. Upon such an application to sell real estate if it appear that the title to lands sought to be disposed of is controverted, and that, therefore, a sale will be made under disadvantageous cir- cumstances, it is proper to stay further proceedings until the parties have an opportunity of determining the title in a court of competent jurisdiction. Hewitt T. Hewitt, supra. Surrogate's Exclusive Jnrisdictioyi. The Supreme Court has no jurisdiction to inquire or deter- mine whether the decedent left personal estate sufficient for Foe Payment of Debts akd Funeral Expenses. 39 payment of his debts or to direct a sale of his lands for that purpose in case of insufficiency. Per Leonard, J., in Hoey v. Kinney, Supreme Court, Special Term (1860), 10 Abb. Fr. 400. Who May Contest Proceedings. The heir, or purchaser, or persons interested in the real estate, may appear before the surrogate and interpose the stat- ute of limitations or any other defeiise. Mooers v. White, Chancery (1822), 6 Johns. Ch. 360. A devisee as well as an lieir can plead the statute of limita- tions in these proceedings. Butler V. Johnson, Supreme Court, General Term, Fourth Department (1886), 4 N. Y. State Eep. 151-153. The heirs and devisees of the real estate may appear on the return of the citation and contest before the surrogate. Bennett v. Grain, Supreme Court, General Term, Fourth Department (1886), 4 IST. Y. State Eep. 158-161. Upon a creditor's application for ah order to sell debts, judg- ment-creditors of the devisee may appear and interpose the statute of limitations as a defense, although the devisee himself does not appear nor oppose the application for sale. Raynor v. Gordon, Supreme Court, General Term, Second Department (1880), 23 Hun, 264. The heirs or devisees may make the same defense to the claims sought to be established before the surrogate as there could be made by them in any other tribunal. A judgment against the representative is not conclusive evidence against the heir. Ferguson v. Broome, New York County Surrogate's Court (1849), 1 Bradf. 11. , What Defenses Proper. The proceeding by the creditors is in hostihty to the admin- istrators, and the administrators will not be allowed to allege their own neglect to render it inoperative. Per Morgan, J., in Woods v. McGhesney, Supreme Court, Onondaga General Term (1863), 40 Barb. 417. 40 Disposition^ of Decedent's Eeal Estate In ejectment by heir against purchaser at surrogate's sale, it is not competent to prove in opposition to the statement of the petitioner that no account had been rendered by the adminis- trators showing a deficiency of assets to pay debts. Woods V. MaGhesney , supra. The administrators will not he allowed to set up a sale in partition of the real estate sought to be sold, in objection to a creditor's petition, as they do not represent either the heirs or the pnrchaser of the property. Richardson v. Judah, JSTew York County Surrogate's Court (1853), 2 Bradf. 157. The validity of a judgment obtained against the representa- tive can be litigated in these proceedings. Thayer v. Oilligan, Supreme Court, General Term, Fifth Department (1«86), 3 N. Y. State Eep. 702-6; Bennett v. Crain, Supreme Court, General Term, Fourth Department (1886), 4 N. Y. State Eep. 158-01. In proceedings for sale of real estate to pay debts it is com- petent for the heir or devisee to show that decedent's personal estate has not been applied for the payment of his debts, but the surrogate may order the sale of tlie real estate if he has satisfactory evidence that the representative has proceeded with reasonable diligence in making such application. SMdmore v. Romaine, New York County Surrogate's Court (1852), 2 Bradf. 123. In proceedings for sale of real estate it is competent on the sale or distribution to offer any equitable defense to tiio claim of an alleged creditor, and the heirs are not restricted' to a legal defense. GampMl v. Renwick,^]^%w York County Surrogate's Court (1851), 2 Bradf. 80. A decedent's discharge in bankruptcy may be attacked col- laterally, in a proceeding in Surrogate's Court relating to his estate, and declared void, as against a creditor as to whom the same was fraudulently procured. Jones V. Le Baron, Kings County Surrogate's Court (1884), 3 Dem. 37. The provisions of section 829 of the Code of Civil Pro- cedure do not apply to a special proceeding under the title For Payment of Debts and Funeral Expenses. 41 instituted by a creditor, when the testimony of another alleged creditor, offered in his own behalf, is objected to by the credi- tor making the petition, as such rule can only be taken advan- tage of by the personal representative of the decedent. J'o?^esv. Le Baron, supra. If a portion only of the heirs object to demands against the estate, and the objection is sustained, the surrogate cannot reject only such part of the demand as would be the propor- tion falling on tlie share of the heirs who object. Renwick v. Renivick, New York County Surrogate's Court (1850), 1 Brad-f. .183. Admissions of Representative as against Heir. The admissions of the executor or administrator in no way bind the heir or devisee, nor does a judgment against the representative affect their rights. They may contest such judgment in proceedings to sell real estate for payment of debts. Colson v. Brainard, Madison County Surrogate's Court (1859), 1 Eedf. 334. If a debt against tlie estate of a decedent is admitted by the executor the heirs may contest its validity in a proceeding to sell real estate, and the executor's admission does not affect the contestants or benefit the creditor. A judgment against the executor is merely presumptive evidence of the debt, which may be rebutted, and the whole question thrown open in such a proceeding. I7i re Haxton, Court of Appeals (1886), 9 Civ. Proc. 197-303; a. C, 103 N. Y. 157. (Eeversing s. C, reported in 33 Hun, 364.) An executor or administrator cannot by admission, made by him, bind the real assets, in the hands of an heir or devisee, or of the people, by escheat, or affect the right of either to plead the statute of limitations. Mooers v. White, Chancery (1833), 6 Johns. Ch. 360. Where claims are presented to the administrator and are by him admitted to be valid claims, it seems that this admission establishes their validity prima facie, and puts the burden of proof upon the objecting party. Bergen, Surrogate, Jones v. Le Baron, Kings County Surro- gate's Court (1884), 3 Dem. 37. (Citing Matter of Fraser, 93 N. Y. 339.) 6 43 Disposition of Dbcedent's Ebal Estate Fraudulent Conveyance Does not Estop Heir Contesting. Where decedent in her life-time conveyed land in fraud of creditors to one who became her heir, and the creditor obtained judgment for his demand against the administrator upon a trial on the merits, and against the heirs setting aside the frandalent transfer, and the administrators applied for leave to sell the decedent's real estate, it was held that as the applica- tion included other lands than those affected by the fraudulent conveyance, the heir might raise the same objections that he might have raised had there been no fraudulent conveyance and decree voiding the same, and that irrespective of the other lands included, the heir was not estopped from questioning the validity and amount of the debt on, which the creditor had proceeded. Jennings v. Jones, Steuben County Surrogate's Court (1876), 2 Eedf. 95. What Debts May be Established. Taxes due at the death of the decedent should be paid from the personal estate, and taxes siibsequently accruing are chargeable upon the land. Oriswold t. Oriswold, New Yorl^'County^Surrogate's Court (1857), 4 Bradf. 316. Payments made by an administrator to redeem decedent's real property from sales for arrears of taxes, in order that the property might not be charged with an additional interest of ten per cent, together with the interest on such payments, should be allowed to the administrator as a preferred claim against the decedent's real estate, when there was no personal property to pay such taxes, and the administrator should be subrogated to the rights of the State against such property for the unpaid taxes. Jones Y. Le Baron, Kings County Surrogate's Court (1884), 3 Dem. 37. Under section 2757 of the Code of Civil Procedure the costs in a judgment obtained against the executor cannot be paid out of the proceeds of a sale of the real estate. Estate of Wilcox, Madison County Surrogate's Court (1886), 11 Civ. Proc. 115-130; In re Haxton, Court of Appeals (1886), 9 id. 197-202; s. c, 102 N. Y. 157. There is no provision in title Y, chapter 18 of the Code of Civil Procedure for the proof of a debt not yet due upon the For Payment of Debts and Funeral Expenses. 43 first hearing, and laches cannot be attributed for failure so to do. Estate of Wilcox, supra. "When a mortgage made by a deceased person is foreclosed after his death and a judgment for deficiency is recovered, the pre- sumption is that if the proceeds of sale were sufficient to pay the costs and expenses of the foreclosure proceedings, they were applied to that purpose, and that the judgment for deficiency does not include any costs, but only the amount remaining due on the bond and mortgage, and such a claim, therefore, is a debt due from the deceased in his life- time, and one which the surrogate may order his real estate sold to pay. East River National Bank v. McCaffrey, New York Oounty Surrogate's Court (1877), 3 Kedf. 97. When a mortgagee assigned the bond and mortgage with a guaranty of payment, and subsequent!}'' died, and a judgment for deficiency was obtained in the foreclosure of the mortgage, the proceeds of sale, being more than sufficient for the purpose, having been applied by dii-ection of the court to payment of costs, fees and taxes on foreclosure, it was held that those sums could not be considered as being any part of the adjudged defi- ciency, the whole of which constituted a debt for which deced- ent's real estate could be sold to pay. Hurd V. Callahan, Westchester Oounty Surrogate's Court (1881), 5 Eedf. 393. (Affirming East River Bank v. McCaffrey, 3 Kedf. 97.) Claim. Cannot Exceed Judgment. Where a creditor of the decedent has taken judgment against the decedent's personal representative for a certain sum, the claim is thereby liquidated, and he cannot recover a larger amount in a proceeding to sell decedent's real property. The measure of recovery against the realty cannot exceed that against the personalty, though it may be less. Skidnore v. Romaine, New York County Surrogate's Court (1853), 3 Bradf. 133. Legal and JEquitable Glaims Proper. Upon an application to sell real estate for payment of debts, both legal and equitable demands may be established against the estate. Renwick v. Renwick, New York County Surrogate's Court (1850), 1 Bradf. 183. 44: Disposition of Decedent's Ekal Estate Claim for Mesne Profits. A claim for the mesne profits of lands occnpied by an intes- tate may be allowed out of the proceeds of his real estate, sold for the payment of his debts. Campbell v. Renwick, New York Surrogate's Court (1851), 2 Bradf. bO. Claim for Necessaries Furnished Imhecile. If necessaries are furnished to a person of weak or impaired capacity, and no fraud or imposition is practiced, a debt is cre- ated which will be a charge against the estate, provided such articles furnished were suitable to the station in life and mode of living of the deceased person. Skidmore v. Romaine, New York County Surrogate's Court. (1852), 3 Bradf. 123. Stated Account of Committee of Lunatic. An order of the Supreme Court, confirming the report of a referee appointed, to settle and state the account of the commit- tee of the property of a lunatic, after the death of the lunatic, and fixing the amount of such committee's claim and adjudg- ing it to be a "legal debt, claim and lien," in favor of the com- mittee and against the estate of the lunatic and his legal repre- sentatives, in the same manner as if it had been a debt con- tracted by such lunatic in his life-time, is conclusive upon the Surrogate's Court as to the character of the comtnittee's claim as a debt of the deceased lunatic, in a special proceeding insti- tuted to obtain a decree for disposal of the real property for payment of debts. Knowing v. Moran, Westchester County Surrogate's Court (1887), 5 Dem. 56. Over-payment hy Administrator. While upon the administrator's application for a final account- ing, a decree of the surrogate, establishing a balance due the administrator from the estate, is conclusive evidence of the facts therein recited, yet such debt, being for over-payments by the administrator in course of administration, is not to be paid out of the proceeds of the decedent's real estate. The statute limits the authority to sell real estate only in cases when the debt existed against the decedent in his life-time. If, however, the debt thus established by the surrogate's decree, or any por- tion thereof, is caused by application of the moneys of the estate to the payment of debts existing against the decedent in his life- Foe Payment oe Debts and Funeual Expenses. 45 time, the administrator may be regarded as the equitable as- signee of such claims, and as subrogated to the rights of such creditors, and entitled to payment out of the real estate, but such debt is a simple contract indebtedness, and must be prose- cuted within six years to avoid the statute of hmitations. (2 E. S. 293, 4th ed.) Ball Y. Miller, Supreme Court, Albany General Term (1858), 17 How. 300. If an executor or administrator pays debts of the estate out of his own moneys to the amount of the personal assets, he may apply such assets to his reimbursement, and by such application and election the assets become his own property. If the per sonal estate proves insufficient for payment of the decedent's debts, and he pay them out of his own funds, to the value of the real estate, he may, if a sale of the real estate is ordered, retain the proceeds of the sale for his own indemnity. Livingston v. Neiokirh, Chancery (1848), 3 Johns. Ch. 312. Amouiit of Proof Required. Before the petitioner can entitle himself to a decree, it is incumbent on him to satisfy the surrogate that there is no devise or valid power of sale under section 2749 of the Code of Civil Procedure. Per EoUins, Surrogate, Dennis v. Jones, New York County Surrogate's Court (1883), 1 Dam. 81-82. In a special proceeding to sell real estate a judgment-credi- tor mnst prove the record of his judgment to prove his debt and the amount of it, and also the insufficiency of the assets to satisfy the same in order to prove the liability of the heirs or devisees. Sandford v. Granger, Supreme Court, Saratoga General Term (1852), 2 Barb. 292.' " The allowance or rejection of a claim by the executor has not the least relevancy in the matter whatever. Whether a claim presented bears the seal of his sanction, or whethei- it comes into court unfathered and unprotected by his magic power, it is treated the same. It must be run in the same hopper, and must \)Q proved, established, before the surrogate, and that too, as I interpret the law, by common-law proof. Less proof tlian is necessary to justify a judgment in a Justice Court, where defendant does not appear, will not suffice. So unimportant a factor is the executor in these proceedings that, when a judg. 46 DisposiTioK OF Decedent's Eeal Estate ment has been taken against him by default, in his representa- tive capacity, it is of no significance or use whatever, and is subject to contest the same as an unliquidated demand. (Code, § 2755.) And even in case a judgment has been recovered against him upon the merits, it is merely presumptive evidence of the debts." Per Spring, Surrogate, Turner v. Amsdell, Cattaraugus County Surrogate's Court (1885), 3 Dem. 19-21. Under the Revised Statutes a disputed claim of an executor might be proven before a auditor on final accounting. The same proof is required for establishment of such a claim in pro- ceedings to sell a decedent's real estate as in a proceeding specially instituted for such proof, as in a final accounting; and an order validating the claim, made in the first-named proceed- ing, is binding and conclusive upon the estate in either of the others. Matter of Gardner, New York County Surrogate's Court (1879), 5 Kedf. 14. When Judgment is Evidence of Debt. In proceedings to sell a decedent's real estate, for the pay- ment of debts, a judgment for a debt due from the decedent, entered upon offer by his executors, against whom the action had been revived, is not evidence of the debt, as tliere is no trial upon the merits. Nor is the offer competent evidence of an admission of indebtedness. The costs in such, judgment are not part of the claim against the estate. Kavanagh v. Wilson, New York County Surrogate's Court (1880), 5 Eedf. 43. A judgment rendered upon the taking of an inquest ijy plaintiff, is one rendered upon "a trial upon the merits" within section 2756 of the Code of Civil Procedure, and is presumptive evidence of the debt upon a hearing before the surrogate. Estate of Rosenfield, New York County Surrogate's Court (1886), 10 Civ. Proc. 201; s. c, 5 Dem. 251. Heir Cannot Levy Contribution on Devisee. The heir is not entitled to contribution from the devisee toward satisfaction of the decedent's creditors, nor will equity aid a pecuniary legatee to throw a debt against the personal estate upon a devise of land. Livingston v. Livingston, Chancery (1817), 3 Johns. Ch. 148. Fob Payment of Debts and Punekal Expenses. 47 Rule for Marshalling Assets. The following rule of marshalling assets toward payment of a decedent's debts has been laid down as a precedent for ex- ecutors : 1 . The general personal estate ; 2. Estates specitically and expressly devised for the payment of debts ; 3. Estates descended ; 4. Estates specially devised, though generally charged with the payment of debts. Livingslon v. Newhirh, Chancery (1818), 3 Johns. Ch. 312. In marshalling assets, the estate descended to the heir is to be applied to the payment of debts before the estate devised, unless devised specifically to pay debts. Livingston v Livingston, Chancery (1817), 3 Johns. Ch. 148. Inventory Presumptive Miidence of Personal Estate. The amount of personal property of the decedent will be assumed, in absence of contrary evidence, to be the amount of the inventory made and filed by the administrator. Forbes v. Hasley, Court of Appeals (1862), 36 N. Y. 53-60, 61. When an inventory of the personal estate of the decedent is filed in the surrogate's office, the law ascertains and adjudges, in the absence of contrary proof, that the amount of personal property set forth in the inventory came into the hands of the administrators, and that the same has been applied to the pay- ment of the debts of the intestate. Forbes v. Hasley, supra. Application of Personal Estate. The application of the personal estate to the payment of the debts of the decedent is made .by law, and until the con- trary appears, the surrogate is justified in assuming that such application has been made. Forbes v. Hasley, Court of Appeals (1862), 26 IST. Y. 53-61. It was held that under the Revised Laws the statute did not require the actual application of the personal estate to the pay- ment of debts as a condition precedent to the right of sale ; but only that such application should be made prior to the order of sale. Bloom V. Burdick, Supreme Court (1841), 1 Hill, 131. 48 Disposition op Decedent's Eeal Estate Determining Insufficiency of Personal Assets. In ascertaining the sufficiency or insufficiency of a dece- dent's personal estate for the payment of his debts and funeral expenses, and the propriety of disposing of his real estate for that purpose, only the personal property which has actually come into the hands of the executors is to be regarded and con- sidered. Uncollected and litigated demands in favor of the estate on which the executor may realize are to be excluded. Bridge t. Swain, Westchester Surrogate's Court (1879), 3 Eedf. 487. Papers on File Judicially Noticed. Papers on file in the surrogate's office, in conjunction with, the petition, are sufficient to give the surrogate jurisdiction, although not referred to in the petition, and may be considered with the petition. Forbes v. Hasley, Court of Appeals (1862), 36 N. Y. 53-61. Jurisdiction of the Subject-Matter. Under the statute of 1801, the surrogate acquired jurisdiction of the subject-matter by the presentation of an account of the personal estate and debts accompanied by a request for his aid in the premises. Bosiwick V. Atkins, Court of Appeals (1849), 3 N. Y. 53. The existence of a dispute as to the validity of the petition- er's claim does not deprive the surrogate of jurisdiction of the proceedings, the same being determinable in the proceed- ings before the surrogate. Eammerrer v. Ziegler, ISTew York County Surrogate's Court (1883), 1 Dem. 177. Onus Probandi of Jurisdictional Facts. Before the act of 1850, " for the protection of purchasers of real estate upon sales by order of surrogates," the onus of proving that the surrogate had jurisdiction of the subject- matter, and of the persons interested in tlie property.' was upon persons claiming title under purchase at surrogate's sale and the special proceedings, but the onus probandi was shifted by the act of 1850 upon those claiming in opposition to a sale to show the non-appointment of guardians for infant owners. Chandler v. Northrop, Supreme Court, Erie General Term (1857), 24 Barb. 129. Foil Payment of Debts and Funeral Expenses. 49 Tliis act threw upon the impeaching party the whole bur- den of proof to show a want of jurisdiction, and in ease of failure to show want of jurisdiction the law will presume the decree and sale are properly made. Woods V. McChesney, Supreme Court, Onondaga General Term (1863), 40 Barb. 417. The act of 1850 included all sales previously made by order of surrogates, pursuant to the original act, and which provis- ions are included in the revision of the act. Therefore sales made prior to the enactment of the lievised Statutes, and under the Revised Laws of 1812, were embraced within the act of 1850. Chandler v. Northrop, supra. xis to when the onus of proving objections to the petition for the sale of real estate is upon the contesting party, see Forhes v. Hashy, Court of Appeals (1863), 36 N. Y. 53-63. Surrogates Equity Jurisdiction. In a proceeding to sell real estate under this title the surro- gate sits as a Court of Equity. Compilers' note to section 3743, Code Civil Procedure, cited In re Haxton, Court of Appeals (1886), 9 Civ. Proc. 303; s. o., ■ 103 N. Y. 157. If a surrogate has, upon the application of a judgment-cred- itor of the decedent, ascertained and determined that the plaintiff's judgment is a valid and legal claim or a subsisting demand against the decedent's estate, and is justly due and owing therefrom, he cannot ascertain that the judgment-cred- itor owes the devisees of the estate a certain sum for the rent thereof, and tlien equitably apply the same upon the judgment in reduction. The Legislature has not given him the preroga- tive of a judge in equity and he can go no further after so adjudicating upon the judgment th'in to enter the same in his hook of proceedings. Cleveland v. Whiton, Supreme Court, Broome G-eneral Terra (I860), 31 Barb. 544. Swrogate May Adjudicate Disputed Claim. "While the rale is settled that a surrogate may not adjudicate upon a disputed claim as between an executor or administrator upon an accounting, that rule does not apply to a proceeding 50 DisposiTiois^ OF Dbcedbn't's Eeal Estate to mortgage, lease or sell real estate, which becomes a contest between the heir or devisee and the creditor ; that proceeding is regulated by statute, and the surrogate has jurisdiction in such a proceeding to try a disputed claim. In re Haxton, Court of Appeals (1886), 9 Civ. Proc. 197; s. c, lOa ^. Y. 157; 1 K Y. State Eep. 164. The statute contemplates no distinction between claims which have been rejected by the executor and those which have not, in conferring such jurisdiction. Idem, p. 301. In a special proceeding instituted to obtain a decree direct ing the disposal of the real property of a decedent under this title, the surrogate is bound under section 2755 of the Code of Civil Procedure to take proof of the claims of all who appear as creditors of the decedent, including those which have been presented to the executor or administrator and re- jected or not allowed by him. Actual creditors and those claiming to be creditors have the same right to appear and establish their claims. While ordinarily a Surrogate's Court has no jurisdiction over claims presented to an administrator and rejected by him, such rule does not apply to these proceed- ings when the executor, if a party to all, is merely a formal one. The real parties in interest are the heirs, devisees and creditors, and the statute expressly authorizes the surrogate to hear proof of disputed claims. Turner v. Amsdell, Cattaraugus County Surrogate's Court (1885), 3 Dem. 19-30. (Overruling Matter of Glann, 3 Kedf. 75; Barnett v. Kincaid, 3 Lans. 330.) In proceedings for sale of real estate the surrogate has juris- diction to hear proofs and decide upon a claim disputed by the executor. People V. Westbroole, Supreme Court, Washington County Special Term (1881), 61 How. 138. Discontinuance of Proceeding. After the administrator makes a voluntary application for sale of decedent's real estate, and after the parties have been brought in and a hearing had, he cannot at his option discon- tinue the proceedings, but the creditors have a right to insist on the further prosecution thereof, and may apply for reviving or expediting the proceedings. Fob Payment of Debts and Funeral Expenses. 51 Farrington v. King, New York County Surrogate's Court (1850), 1 Bradf. 182. A special proceeding instituted in Surrogate's Court under this title, cannot, after jurisdiction over the parties is obtained, be abandoned or dismissed except by the entry of an order to that effect. It seems that a proceeding of this nature must be treated the same as an action where all the parties have been served. Raven v. Norton, Kings County Surrogate's Court (1883), 2 Dem. 110. Where such a fecial proceeding has been instituted by the adtninistrator, the Surrogate's Court may require him to pro- ceed on the motion of a creditor, showing that the real estate is insufficient for the payment of debts. Raven v. Norton, supra. Under subdivision 11 , of section 2481, of the Code of Civil Pro- cedure, the Surrogate's Court has authority, when a proceeding under this title has been instituted, to order a discontinuance thereof, at the instance of the owner, upon payment by him of the claims established and costs incurred. Knowing v. Moran, Westchester County Surrogate's Court (1887), 5 bem. 56. 52 Disposition- of Decedent's Real Estate CHAPTER VI. THE DECREE FOR DISPOSAL. Decree to Specify Debts — Filing Youchers. Skotion 2758. The decree must determine and specify the amount of each debt established before the surrogate, as a valid and subsisting debt against the decedent's estate, or as a just and reasonable charge for funeral expenses, and must, in like manner, specify what demands presented have been rejected. The vouchers presented before the surrogate, in support of each debt established, must be filed and remain in the surro- gate's office. When New Application Required. When an order for sale of part of the real estate has been made for payment of debts then ascertained, the surrogate can- not make another order to sell another portion of tlie real estate to pay subsequently discovered debts, until a new and original application has been made. Gilchrist v. Rea, Chancery (1841), 9 Paige, 66. Selling Real Estate of Surviving Partner. Where both the members of a co-partnership are dead, a creditor of the firm may, upon proper proof and order, procure a sale by the surrogate, of the real estate of the partner who survived the other, although the partner who first died left ample assets to meet all demands against liis estate. Bridge v. Stoain, Westchester County Surrogate's Court (1879), 3 Eedf. 487. J e> \ i> Recitals in Decree. A recital in an order of sale that it was made upon proof of due publication of the order to show cause is no more than a statement by the surrogate that he acquired jurisdiction, and is PoK Payment of Debts and FanERAL Expenses. 53 of no effect, not showing an adjudication that he found the facts upon which his jurisdiction depended from tiie evidence. Sibley v. Waffle, Court of Appeals (1857), 16 N. Y. 180. Collateral Impeachment of Order of Sale. A surrogate's order of sale of a decedent's real estate cannot ordinarily be Impeached collaterally, even for fratids ; if the surrogate obtain jurisdiction by the presentment of an account of the estate and debts of the decedent, his adjudication that the personal estate is insufficient for the payment of debts, is conclusive in any collateral proceeding. Such adjudication can only be questioned upon appeal. Atkins V. Kinnan, Supreme Court (1838), 20 Wend. 241; Jackson v. Boiinson, Supreme Court (1830), 4 id. 436; Jackson V. Craivfords, Supreme Court (1834), 12 id. 533. When Decree Refused. It was held to be discretionary with the surrogate under the Revised Statutes to refuse an order for the sale of real estate to pay the debts of tlie testator when theexecutoi* had personal property in his hands undisposed of, and that such discretion would not be interfered with by an appellate court. Moore v. Moore, Supreme Court, New York General Term (1852), 14 Barb. 27. Proofs Necessary to Obtain Decree. Section 2759. A decree, directing the disposition of real property, or of an interest in real property, can be made only where, after due examination, the following facts have been established to the satisfaction of the surrogate : 1. That the proceedings have been in conformity to this title. 2. That the debts, for-the payment of which the decree is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses ; and justly due. 3. That they are not secured by a judgment or mortgage, or expresslj' charged by the will upon the decedent's real property, or interest in real property; or, if a debt is so secured or charged upon a portion of the real property, or interest in real property, that the remedies of the creditor, by virtue of that charge or security, have been exhausted. 4. That the property directed to be disposed of was not 54 Disposition of Decedent's Ebal Estate eflectnally devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same. 5. That all the personal property of the decedent, which could have been applied to payment of the decedent's debts -* and funeral expenses, has been so applied; or that the execu- tors or administrators have proceeded with reasonable diligence, in converting the personal property into money, and applying it to the payment of those debts and funeral expenses ; and that it is insufficient for the payment of the same, as established by the decree. Sufficiency of Evidence Presumed. When the surrogate had jurisdiction of the parties and of the subject-matter, and lias made an order of sale of decedent's real estate for the payment of debts and funeral expenses, it will be presumed that he had sufficient evidence of the facts necessary to be ascertained, before making such judicial deter- mination. Farrington v. King, New York County Surrogate's Court (1850), 1 Bradf. 182. Trial hy Jury — When Ordered. Section 2547. (Amended, 1889.) The surrogate may, in his discretion, make an order directing the trial by jury, at a Circuit Court to be held within the county, or in the County Court of the county, of any controverted question of fact aris- ing in a special proceeding for the disposition of the real prop- erty of a decedent, as described in title fifth of this chapter. The order must state distinctly and plainly each question of fact to be tried, and it is the only authority needed for the trial. The surrogate of the county of New York may, in his discre- tion, make an order transferring to the Court of Common Pleas for the city and county of New York any special proceeding for the probate of a will pending before him, or in the court over which he presides, and thereupon the issues of fact arising in such proceeding shall be heard and determined by said Court For Payment of Debts and Funeral Expenses. 55 of Common "Pleas. The order transferring such proceeding is the only authority necessary for the trial in the said Court of Common Pleas of such issues of fact. Such issues of fact shall be tried by jury, and the verdict can be reviewed only by a motion for a new trial upon the minutes of the judge. Such motion must be made within ten days after the verdict is ren- dered. A new trial may be granted upon exceptions, or be- cause the verdict was rendered upon insufficient evidence, or is against the evidence or weight of evidence. An appeal lies to the General Term of the Court of Common Pleas from the order granting or refusing a new trial ; and from the order of the General Term affirming an order refusing a new trial an appeal lies to the Court of Appeals. An appeal must be taken by serving written notice of appeal upon the clerk of the court, and upon the attorney for the respondent, within ten days after the service upon the attorney for the appellant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon a case containing all the evidence ; and an error in the admission or the exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the discretion of the court, be disregarded if substantial jus- tice does not require that there should be a new trial. If a motion to set aside the verdict be not made, or if at the termi- nation of the proceedings for its review the verdict, is sustained, the Court of Common Pleas shall certify to the Surrogate's Court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all pro- ceedings relating to the will and to the estate of the decedent shall be had in the Surrogate's Court. The original will shall be returned to the Surrogate's Court at the time the verdict is certified thereto. The costs shall be taxed in the Surrogate's Court, and shall be the same, and shall be awarded in the same manner as if the proceedings had been heard by the surrogate. When the creditor's claim is in dispute it is discretionary with the surrogate, and it will be refused in a case where it wonld entail needless delay and expense. Mead v. Jenkins, Westchester County Surrogate's Court (1882), 4 Eedf. 369, 56 Disposition OF Decedeis^t's Real Estate Trial hy Jury — How Reviewed. Section 2548. (Amended 1889.) A trial by jury pursuant to an order made in a proceeding for the disposition of the real property of a decedent, made as prescribed in the last sec- tion, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may he granted by the surrogate or the court in wliieh the trial took place, or, if it took place at the Circuit Court, by the Supreme Court, in a case where a new trial of specific questions of fact, tried by a jury pursu- ant to an order for such trial, made in an acti^on, would be granted. The verdict of the jury must be certified to the Surrogate's Court by the clerk of the court in which the trial took place. Appeal FroTTb Yerdict. Section 2549. An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and witli like effect. Costs of such an appeal may be awarded by the a]>pellate court, as if the appeal was from an order or decree of the Surrogate's Court. Requisites of Decree. Section 2765. A decree directing that real property be mortgaged, leased or sold, or that an interest in real property be sold, as prescribed in this title, must describe it with com- mon certainty ; and must direct that a mortgage, lease or sale thereof, for the purpose of paying the debts or funeral expen- ses, established by the decree, be made by the executor or ad- ministrator, upon his giving the bond prescribed by law, or, in case of his failure so to do, by a freeholder, to be appointed by the surrogate as prescribed by law; and in case a sale thereof be directed, n)ay authorize the same to be made at private sale, at a price not. less than the value thereof, as ap- praised pursuant to the provisions of section 2760 of this Code. Omission of Portion of Property. It seems that when the surrogate had made an order in terms directing a, sale of the whole of the real estate of a de- For Payment of Debts and Puj^ebal Expenses. 57 cedent for payment of debts, but a description of the lands in tlie order of sale omitted a portion of the decedent's realty, that a new order may be made by the surrogate for sale of the lands omitted, upon petition of the administratrix showing the error, without a new order to show cause being issued. Sheldon v. Wright, Court of Appeals (1857), 5 N. Y. 497. Jurisdictional Defects Not Cured hy Statute. Jurisdictional defects in the proceedings are not cured by Laws of 1857, chapter -82, section 3, as amended by Laws of 1869, chapter 260, entitled '• An act for the protection of pur- chasers of real estate upon sales made by order of surrogate." Stilwell V. Swarthout, Court of Appeals (1880), 81 N. Y. 109. Parol Evidence to Supply Records. Parol evidence is admissible to show the regularity of pro- ceedings before a surrogate for the sale of a decedent's estate, when it appears that the records and papers of the surrogate, during the time that the proceedings were l>ad, were not properly kept, and the presumption is thus raised that papers ot his office may be lost. Jackson v. Crawfords, Supreme Court (1834), 13 Wend. 533. M^ors Only Available on Appeal. When jurisdiction is properly obtained, any errors or irregu- larities in its exercise can only be impeached by appeal; they cannot be attacked collaterally. Warrington v. King, New York County Surrogate's Court (1850), 1 Bradf. 182. Parties to Appeal. All parties to the proceedings before the surrogate, who are interested in sustaining the decree or order appealed from, should be made parties to the appeal. Gilchrist v. Rea, Chancery (1841), 9 Paige, 66. The heirs-at-law may appeal from a decision of the surro- gate in snch proceedings, adjudging certain claims to be valid and subsisting demands: Owens V. Bloomer, Supreme Court, General Term, Third Department (1878), 14 Hun, 296. 8 58 Disposition of Decedent's Real Estate Decree Conclusive as to Assets. The decree of a surrogate as to the amount of assets which an administratrix has in her possession in a proceeding to sell real estate is conclusive upon a party who appeared therein, and cannot be controverted in an action to foreclose a mort- gage given by the administratrix pursuant to an order made by surrogate in such proceeding for the mortgaging of dece- dent's realty. Graham v. Linden, Court of Appeals (1872), 50 N. Y. 547. Effect of Decree. The decree of the surrogate upon the first hearing becomes in fact a lien upon the proceeds of the sale of land and thus secures payment of the debts established upon the first hearing, if sufficient for that purpose, against any contingency. iNo mortgage or judgment could make it more secure than this decree of the court against the subsequent ac1;s of executors, or against those creditors who neglected to establish their debts when invited by the court so to do. Per Kennedy, Surrogate, In Estate of Wilcox, Madison County Surrogate's Court (1886), 11 Civ. Proc. 115-131. Fob Payment of Dbbts and Puneeal Expenses. 59 CHAPTER VII. MANNER OF DISPOSAL. Appraisal of Real Estate. Section '2760. (Amended 1885.) If the facts specified in the last section are satisfactorily established, the surrogate must inquire whether sufficient money can be raised, advantageously to the persons interested in the real property, by a mortgage or lease of the real property of which the decedent died seized, or of a part thereof. And to that end lie sliall appoint three competent disinterested persons to examine and appraise each parcel of such real property and its rental value at its just and fair market value ; they shall forthwith so appraise the same, make a report thereof, signed and verified by at least two of them, describing each parcel, and stating its value and rental value, and file the same in the surrogate's office. If he ascer- tains that the money can be! so raised, the decree must direct the execution of one or more mortgages or leases accordingly ; but a lease shall not be made for a longer time than until the youngest person interested in the property leased attains full age. A mortgage or lease, executed pursuant to such a decree, has the same effect as if it had been made by the decedent, im- mediately before his death. When Sale Should he Ordered. Section MTGI. (Amended 1885.) Where it appears to the surrogate upon the inquiry made as prescribed in the last section, that sufficient money cannot be raised advantageously to the persons interested in the real property by mortgage or lease, the decree must direct a sale of the real property, or interest in real property, or of so much thereof as is necessary, in order to pay the debts and funeral expenses of the decedent, as estab- lished in the decree, at public or private sale. Where a sale 60 Disposition of Decedent's Real Estate of all the real property, or interest in real property, is not necessary for that purpose, but enough of either cannot be sold, without manifest prejudice to the persons interested, the decree may direct a sale of all the real property, or all the in- terest in real property, or both, or of such a part of either as the surrogate thinks proper, at public or private sale. Sale of Whole or Part of Decedents Properti/. The Revised Statutes vested the surrogate with discretionary power as to determining the necessity of selling all the real estate of a decedent. Matter of Dolan, Court of Appeals (1882), 88 N. Y. 309. An objection that the sale made was of all decedent's realty and for the payment in excess of the debts of the decedent is not available to a purchaser who petitions to be relieved of his purchase. Matter of Dolan, supra. The surrogate has authority to order, the sale of all the real estate of a decedent, where a sale of all is not necessary to pay the debts, if in his judgment lie shall consider that a sale of a part would be prejudicial to the heirs and devisees, provided the premises were so situated that a part thereof could not be sold without manifest prejudice to the heirs and devisees. The term '' situated " used in the statute refers not only to the loca- tion, size and improvements upon the land itself, but its situa- tion, in reference to the interests of the heirs and devisees, and when all the premises ordered to be sold were covered by mortgages, it was held the Surrogate had properly directed a sale of the entire property, saving the devisees the expense of an equity suit. Matter of Dolan, New York County Surrogate's Court (1881), % Deni. 611; s. c, 36 Hun, 46. Postponing Sale of Portions of Estate. Section 2762. Where it appears that any of the real property, of which the decedent died seized, cannot be sold, without manifest prejudice to the persons interested therein, by reason of a controversy respecting the decedent's title thereto, or interest therein, the decree may direct that the execution thereof, with respect to that property, be postponed, until the FoK Payment of Debts and Funeral Expenses. 61 special direction of the surrogate. In that ease, a partj' may apply at any time afterward, upon notice to the others who appeared, for an order directing the execution of the decree, with respect to the property so reserved. Section 2762 of the Code of Civil Procedure seems to pro- vide opportunity for a litigation with a fraudiilent grantee over the alleged fraud prior to any sale. Harvey v. McDonnell, Supreme Court, Oeneral Term, Third Department (1888), 1 H. Y. Supp. 86. Order in which Property /Should be Sold. Section 2763. Wiiere the decree directs the sale of two or more distinct parcels of real property, of winch the decedent died seized ; or his interest under two or more contracts for the purchase of distinct parcels of real property ; the decree may direct the sale to be made, in the order which the surrogate deems just, unless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him, or sold by his heirs: in which case, the several distinct parcels must be sold in the following order : 1. Property which descended to the decedent's heirs, and has not been sold by tliem. 2. Property so descended, which has been sold by them. 3. Property which has been devised, and has not been sold by the devisee. ■4. Property so devised, which has been sold by the devisee. Protecting Piir chaser from Heir. Where an heir has conveyed a part of the real estate de- scended to him, leaving the debts of his decedent unpaid, it seems that the surrogate may direct the lands still belonging to the heir to be first sold to pay debts, so as to protect the equit- able rights of the purchaser from the heir. Eddy V. Trover, Chancery (1837), 6 Paige, 521. When Sale iy Parcels /* roper. It is no objection to an order of sale that the surrogate directs a village plot to be sold, without prescribing it to be sold in lots or parcels; under such an order, the administrators may and should sell by parcels. Jackson V. Irwin, Supreme Court (1833), 10 Weud. 441. 63 Disposition of Decedent's Eeal Estate Executors not Required to Sell Vault. Executors will not be required to sell lease-hold premises, on whieli the testator has erected a private vault, in which he was interested, and in regard to wliieh specific directions were con- tained iu the will, before the real estate can be sold for payment of debts. Shidmore v. Romaine, New York County Surrogate's Court, (1852), 2 Bradf. 122. Precedent Estates and Prior Sales. Section 2764. "Where the decedent's will devises an uDdi- vided interest in real property, but not the whole of his estate therein ; or creates a precedent estate in real property ; or where an heir of the decedent has sold an undivided interest, or cre^ ated a precedent estate, in real property which descended to him ; the entire property, to wbicli the undivided interest or precedent estate attaches, must be sold. But, in applying the proceeds to the payment of debts and funeral expenses, the application of the proportion of the proceeds, belonging to' the devisee or grantee of the undivided interest, or of the pre- cedent estate, must be postponed to the application of the resi- due, in the order prescribed in the last section, in like manner, as if that undivided interest or precedent estate was a distinct parcel of the property. Foe Payment of Debts and Funeral Expenses. 63 CHAPTER VIII, EXECUTION OP THE DECREE. Bond Required hefore Moeoution. Section 2766. Before an executor or administrator can execute a decree, directing tliat property be mortgaged, leased, or sold, he must execute, and file with the surrogate, his bond, with two or more sureties, to the people of the State, in a pen- alty, fixed by the surrogate, not less than twice the sum to be raised, if the decree directs a mortgage ; or, if it directs a lease, in such a penalty as the surrogate thinks proper ; or, if it directs a sale, in a penalty not less than twice the value of the real prop- erty, or interest in real property, directed to be sold. The bond must be conditioned for the faithful performance of the duties imposed upon the principal by the decree ; for the payment into the Surrogate's Court, within twenty days after the receipt thereof, by the principal, of all money arising from the mort- gage, lease, or sale ; for the delivery to the surrogate, within the same time, of all the securities taken thereupon ; and for the accounting by the principal, for all money received by him, whenever he is required so to do, by a court of competent jurisdiction. Appoini/inent of Freeholder. Section 2767. Where there are two or more executors or administrators, if either of them fails, within such time as the surrogate deems reasonable, to give, or to join with his co-execu- tors or co-administrators in giving, a bond, as prescribed in the last section, the surrogate may direct those who have given the bond, to proceed to execute the decree. But if a sole executor or administrator, or all the executors or administrators so fail, the surrogate must make an order, appointing a disinterested freeholder to execute the decree. He may vacate such an appoint- 64 DisposiTiosT OS Decedent's Real Estate ment, and make a new appointment, from time to time, as the ease requires. A person so appointed mutt give a bond, in all respects like that required from an executor or administrator, as prescribed in the last section. In making such an appoint- ment, the surrogate biust give a preference to a competent person nominated by the creditors, whose debts have been established, or a majority of them in number and amount. Order Directing Execution. Section 2768. "Where an executor or administrator, or a freeholder appointed as prescribed in the last section, has given the requisite bond, an order must be made, reciting the fact, and directing him to proceed to execute the decree. The order may direct the execution of the decree, with respect to all or any part of the real property, or any of the interests in real property, specified in the decree. Where it directs the execn- tion of the decree, with respect to part only, an order to execute it with respect to any other part or parts, may be made from time to time, as the case requires. Appellate Court Directing Execution. Section 2769. Where the only question, upon an appeal taken from a decree directing a sale of real property, or of an interest in real property, or both, relates to the validity or amount of a debt established by the decree ; and the real property directed to be sold, or to which the interest directed to be sold attaches, consists of two or more distinct parcels, the sale of, or with respect to, one or more of which will suf- fice to pay all the other debts so established, leaving enough real property, or interest in real property, unsold, to satisfy the claim drawn in question upon the appeal ; the appellate court may, upon the motion of any party to the special proceeding in the Surrogate's Court, made upon notice to all parties to the appeal, direct the Surrogate's Court to cause the decree to be executed, with respect to the distinct parcels of real property, which will suffice to pay the debts hot in controversy ; and the proceeds of a sale, made pursuant thereto, to be distributed, in like manner as if tiie decree related only to those parcels and those debts ; except that any surplus, which may remain Foe PAYMEifT OF Debts and Funeral Expen-ses. 65 for distribution after payment of those debts, or so much thereof as will suffice to pay the demand in controversy, must be paid into the Surrogate's Court and retained by the county treasurer, subject to the order of the surrogate, to abide the event of the appeal. But this section does not authorize a sale of any distinct parcel, otherwise than in the order presciibed for that purpose, in sections 2764 and 2765 of this act. Execution not Suspended hy Death, etc. Section 2770. The death, removal or disqualification, be- fore the complete execution of a decree, of all the executors or administrators, who have been directed to execute it, or of a freeholder appointed for the purpose, does not suspend or affect the execution thereof ; but the successor of the person who has died, been removed, or become disqualified, must pro- ceed to complete all unfinished matters, as his predecessor might have completed the same; and he must give security for the due performance of his duties, as the surrogate pre- scribes. 9 66 Disposition of Decedent's Ebal Estate CHAPTEK IX. SALES AND CONVEYANCES. Place and Mam,ner of Sale. Section 2772. (Amended 1885.) Each distinct parcel of real property must be sold in the county where it or a part thereof is situated. The provisions of sections 1384, 1385, 1386, 14-34, 1435 and 1436 of this act apply to a public sale of real property, or of an interest in real property, as prescribed in this title. In making the application each provision relating to the sheriff is deemed to apply to the person making the sale, pursuant to the decree and the order directing the execution thereof. A private sale of real property, or of an interest in real property, must be made by contract in writing, subject to the approval of the surrogate. Section 1384. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. Section 1385. A person who, before the time fixed for the sale, in a notice of the sale of property, to be made by virtue^ of an execution {surrogate's decree), wilfully takes down or defaces such a notice put up by the sheriff, or by his aiithority, forfeits fifty dollars to the judgment-creditor, and the same sum to the judgment-debtor ; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture, or the execution was previously satisfied. Section 1 386. An omission by the sheriff {executor, admin- istrator or freeholder) to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not affect the validity of a sale, made by virtue of an execu- FoK Payment of Debts and Funeral Expenses. 67 tion, to a purchaser in good faith, without notice of the omis- sion or offense. Section 1434. The slierifl {executor, administrator or free- holder) who sells real property, by virtue of an execution {de- cree of a surrogate), must previously give public notice of the time and place of the sale, as follows : 1. A written or printednotice thereof must be conspicuously fastened up, at least forty-two days before the sale, in three public places, in the town or city where the sale is to take place, and also in three public places, in the town or city where the property is situated, if the sale is to take place in another town or city. 2. A copy of the notice must be published, at least once in each of the six weeks, immediately preceding the sale, in a newspaper published in the county, if there is one; or, if there is none, in the newspaper printed at Albany, in which legal notices are required to be published. Section 1435. In each notice, specified in the last section, the real property to be sold must be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or by some other ap- propriate description. The validity of a sale is not affected by the fact, that the property sold is part only of the property ad- vertised to be sold. Note. — As to description, see O'Donnell v. Lindsay, 39 N. T. Super. 523. Section 1436. A sheriff {executor, admiyiisirator or free- holder) who sells real property, by virtue of an execution {surrogate's decrei), without having given notice thereof, as prescribed in the last two sections, or otherwise than as pre- scribed in this chapter, forfeits one thousand dollars to the party injured, in addition to the damages which the latter sus- tains thereby. Note.— See Wood v. Moorehouse, 45 N. T. 368 ; Faroe v. Halbert, 1 How. 235. Under the act of 1801, sales under surrogate's orders might be public or private, in the discretion of the executor or ad- ministrator obtaining the order. Jackson v. Irwin, Supreme Court (1838), 10 Wend. 441. 68 Disposition" oe Decedent's Real Estate If lands of a decedent, sold by order of the surrogate, are in a city, notice of the sale naust be posted in the ward where the land is situated, and the party making the sale is chargeable with notice of any defect in posting notices and cannot claim as a ionafide purchaser. Jennings v. Jones, Steuben County Surrogate's Court (1876), 2 Eedf. 95. Administrator' s Duty in Conducting Sale. The administrator is bound to show a sound discretion as to the mode of conducting the sale. He is not bound to consum- mate it if, for any reason, the saTiie might be set aside on the ground of unfairness. He should be left free to execute the order of sale. The administrator's duty in conducting the sale is similar to that of a sheriff on execution, and is strictly anal- ogous to that of a master in chancery in executing a decree of sale. In re Lawrence, New York County Surrogate's Court (1848), 1 Red! 310. Extent of Administrator' s Authority. ' The administrator's authority to sell under a decree of the surrogate is analogous to a power in trust to sell, as distin- guished from a trust. In re Lawrence, supra. An administrator's deed, executed subsequent to the act of 1813, which requires sales to be at public vendue and on notice, if executed by virtue of an order granted under the act of 1801, which allowed sales to be either public or private, in the discretion of the executor or administrator, is valid, al- though the premises were sold at private sale and without notice. Jackson v. Irwin, Supreme Court (1833), 10 Wend. 441. Whether an administrator authorized by the surrogate's order to mortgage lands of his intestate, can legally include a power of sale in the mortgage, and whether the foreclosure of such mortgage under such power is valid, so as to bar redemp- tion, qumre; but at all events, where the mortgage has been foreclosed under such power, and the mortgagor has entered into possession, the heirs of the intestate cannot maintain ejectment. Fox V. Lipe, Supreme Court (1840), 24 Wend. 164. For Payment of Debts and Funeral Expenses. 69 Separate, Parcels to he Sold Separately. Section 2773. (Amended 1885.) Where real property to be sold at public sale consists of one or more distinct parcels, the person making the sale must cause each, distinct parcel to be separately exposed for sale, unless otherwise directed in the de- cree, or in the order to execute the same, or in an oi'der subse- quently made by the surrogate. Uninounihered Lands F^irst Sold. Unincumbered lands should be sold to pay debts in prefer- ence to mortgaged lands. Matter of Olark, New York County Surrogate's Court (1877), 3 Eedf . 235. Sales Upon Credit. Section 2771. The surrogate may, in the order directing the execution of the decree, or in a separate order made before the sale, allow a sale to be made upon a credit, not exceeding three years, for not more than three-fourths of the purchase-money, to be secured by the purchaser's bond, and his mortgage on the property sold, except where the sale is that of an interest under a contract ; in which case, the order may prescribe the security to be given. Certain Purchases Prohibited. Section 2774. An executor or administrator upon the estate, a freeholder appointed to execute a decree, or a general or a special guardian of an infant, wjio has an interest in any of the real property to be sold, shall not, directly or indirectly, purchase, or be, or, at any time before confirmation, become interested in a purchase at the sale; except that a guardian may, when authorized so to do by the order of the surrogate, purchase, in his name of office, for the benefit of his ward. A violation of this section renders the purchase void. Purchases by Interested Persons. A testamentary guardian of an infant devisee has no right to purchase his testator's real estate at a sale under order of the surrogate ; such sale is not absolutely void, but is voidable at the election of the ward. If the ward have knowledge of 70 Disposition of Decedekt's Ebai. Estate the sale, which is beneficial to him, he may, by laches, lose his right to repudiate the same. Bostwick V. Atkins, Court of Appeals (1849), 3 N. Y. 53. The rule forbidding an executor to purchase or be interested in the purchase of the real estate of a decedent sold for the payment of debts, is violated if the executor becomes interested in the purchase before confirmation of the sale, although not until after the property is struck off, and the sale is thereby rendered absolutely void. Terwilliger v. Brown, Court of Appeals (1870), 44 N. Y. 337. The facts that the fair value of the premises was bidden, and the sale was thereafter confirmed, ex parte, will not make such sale valid, when the executor has become interested in the pur- chase, nor is it material that the agreement by which the exec- utor became interested, might be void by the statute of frauds. Terwilliger v. Brown, supra. The purchase at a sale of real estate for the payment of an intestate's debts, by one acting as the agent or for the benefit of the administrator, is void and does not in any manner affect the title of the heirs . of the decedent to the premises so pur- chased. ForUs Y. Hasley, Court of Appeals (1862), 26 N. Y. 63. An agreement by an administrator to convey the real estate of the decedent, previous to obtaining the surrogate's order of sale, and in anticipation of the same, is illegal and void, be- cause the administrator has no interest. Bolt v. Rogers, Chancery (1832), 3 Paige, 154; Overseers of Bridgewater v. Overseers of BrooMeld, Supreme Court (1824), 3 Cow. 299. Liability for Fraud in Sale. If an adnamistrator exhibits an untrue account of the per- sonal estate of the deceased to the court, bj' which he fraudu- lently obtains an order for the sale of the real estate, he must not only account for the personal effects omitted in his state- ment, but is answerable for the real estate sold, and that, ac- cording to its value at the time of filing the bill against him. Hart V. Ten Eyclc, Chancery (1816), 2 Johns. Oh. 62. EoK Payment of Debts and Funeral Expenses. 71 The following section of the Revised Statutes, excepted in the General Repealing Act, is believed to be in force. § 58. (2 R. S. 110). Any executor, administrator, or other person appointed as herein directed, who shall fraudulently sell any real estate of his testator or intestate, contrary to the foregoing provisions, shall forfeit double the value of the land sold, to be recovered by the person entitled to an estate of in- heritance therein. Vacating the Sale. Section 2775. (Amended 1885.) The person making the sale must with all convenient speed file with the surrogate a report of the sale. The surrogate must upon notice, given in such manner and for such a length of time as he thinks proper, to each party who has appeared, inquire into the proceedings ; and be may take oral testimony respecting the same. If he is of opinion that the pi'oceedings were unfair ; or that the sum bid for the whole, or for a distinct parcel of real property separately sold, or in case of a private sale of the same, that the sum at which it is agreed to be sold, was less than the value thereof at the time of sale, and that a sum exceeding that bid, or in case of a private sale, exceeding that at which it is agreed to be sold at least ten per centum, exclusive of the expenses of a new sale, may be obtained upon a resale, — he must make an order vacating the sale, either wholly or with respect to the distinct parcel affected, and directing another sale, and whether it shall at public or private sale, notice of which, in case of a public sale thereof, must be given, and the sale must be conducted as in this title prescribed for a public or private sale as may be applicable. When Sale Vacated. On motion to confirm the sale, if it appears that a sum ex- ceeding ten per cent of the bid, exclusive of expenses of a "new sale, can be obtained", it is the surrogate's duty to vacate the sale, and direct a re-sale of the property. If, however, such advance cannot be obtained, and the sale was legally made, and conducted fairly, the surrogate is imperatively re- quired to confirm it. Horton v. Horton, New York County Surrogate's Court (1852), 3 Bradf. 300. 72 Disposition- ov Decedent's Real Estate Wheu the deseriptiou of the land sought to be sold was in- correct and faulty, and the sum bid was clearl)' disproportion- ate to its value, and at least ten per cent more ouglu to be and might be obtained by a re-sale, the sale was vacated. The purchaser was held to be entitled to be repaid the amount he had deposited on iiis bid, and the auctioneer's fees paid bj him, but not for fees paid his counsel in the proceeding, or in ex- amining the title. Estate of Camplell, New York County Surrogate's Court (1866), 1 Tucker, 240. As to when the Surrogate's Court will deny upon the merits on application to open and vacate a decree directing the sale of decedent's real property for the payment of his debts see Olmstead v. Long, Westchester County Surrogate's Court (1885), 4 Dam. 44. Evidence of absence of power by administrators is inadmis- sible to defeat the title of a purchaser at a sale made by virtue of an order of the surrogate. Jackson v. Irwin, Supreme Court (1833), 10 Wend. 441. Confirming the Sale — Conveyance. Section 2776. "Where a sale is not vacated, the surrogate must make an order confirming it ; and where it is vacated as to a part only of the property sold, he must make an order confirming it as to the residue. An order, confirming a sale, must direct the person making the sale to execute the proper conveyances upon compliance, on the part of the purchaser or purchasers, with the terms of the sale. The necessary convey- ances must be executed by that person accordingly, and must briefly refer to the decree, the order to execute it, and the order of confirmation. Purchaser Deducting Debt. Section 1. Section thirty of title four, chapter six, part sec- ond of the Revised Statutes, is hereby amended so that the same shall read as follows : § 30. If it shall appear to the surrogate that such sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold ; or, if Pou Payment of Debts and Funeral Expenses. 73 disproportionate, that a greater sum, as above specified, cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed. If it shall also appear to the surrogate that the amount tliereof will be sufficient to satisfy in full the costs and expenses of said sale, and all debts of the deceased proven before the surrogate, and entered in his book as valid and subsisting, togetlier with all rights of dower therein, if any, and that a creditor or creditors of said deceased, or either of them, whose debt has been proven and allowed by tiie surrogate, has become tlie purchaser of said real estate, or any part thereof, the surrogate, in tlie order of confirmation of such sale, shah, at the election of the purchaser, state the amount of such claim or claims of such creditor or ci-editors allowed by him ; and such purchaser shall be required to pay the surplus, if any, of the amount bid, after deducting the amount of such claim or claims only. In case the amount of such sales shall be insufficient to satisfy the costs and expenses of such sale, and the whole amount of the claims against the estate, as proven, and allowed on or before final distribution, then, and in such case, such purchasing creditor shall be allowed and credited on the amount bid by him, an amount equal to the amount he would be entitled to receive on distribution, and the balance of such bid shall be paid b\' such purchaser on final distribution. In case any purchasing creditor shall elect to have the amount to which he shall be entitled to receive from the estate, credited on his bid as aforesaid, he shall not be entitled to have a deed delivered to him until such final distri- bution. (Laws of 1880, chapter 236.) Note. — This act was passed by the same Legislature which passed the General Kepealing Act. It is an act amending a section of the Revised Statutes which was repealed Dy the General Repealing Act. Its object was to permit a purchaser to use in his purchase the claim established in his favor. It is stated upon good authority th at the foregoing act is still in force. Deed Should Set Forth Order of Sale. Where a sale is made under a surrogate's order, a deed omitting to set forth at large the order of sale made by the surrogate is inoperative at law until confirmed by the chancellor. Such deed need not literally recite the order of sale, but every substantial part of it should be set forth. Atkins v. Kinnan, Supreme Court (1838), 30 Wend. :i41. 10 74 Disposition' oe Decedbnt's Ebal Estate Errors in the Conveyance. An error in reciting the order of sale in an administrator's deed upon a sale in pursuance of a surrogate's order, will not vitiate the deed, when other parts of the deed' furnish of them- selves obvious means of correcting the error. Sheldon v. WrigU, Court of Appeals (1851), 5 N. Y. 497. Sufficiency of Description of Lands. Where, in the order of sale, as well as the deed under it? the land was described as " being ninety-one acres of the south- west corner of lot number eleven," and it was shown that the deceased died seized of just that quantity in the designated lot, and that his land touched the south-west corner, it was held that the description was sufficient to pass title to the purchaser. Bloom V. Bicrdich, Supreme Court (1841), 1 Hill, 131. Waiver of Irregularities. An irregularity in giving notice to an heir of the decedent of an application to the suri'ogate for an order to sell real es- tate for pa} inent of debts is cured by a subsequent petition of the heir to the surrogate for an order to confirm the previously- made sale and to authorize the administrator to complete the sale by giving a deed and receiving the purchase-money. Butler V. Emmett, Chancery (1839), 8 Paige, 13. Necessity of Confirmation. A sale under a surrogate's order of a decedent' s real estate is void unless an order of confirmation is made, previous to the executing of the conveyance to the purchaser, although it is offered to be proven that the sale was bona fide, that a full and fair price was paid by the purchaser, and that the proceeds thereof were applied to the payment of the decedent's debts. Rea v. M'Eachron, Supreme Court (1835), 13 Wend. 465. An administrator's deed, under a surrogate's order of sale, made previous to the act of 1819, which act required a con- firmation of the sale, is good and valid, if executed subsequent to the passage of the act, and without a confirmation of the sale. The act of 1819 only applied to future cases. Fox V. Lipe, Supreme Court (1840), 24 Wend. 164. The omission of the administrators to make a report of sale to the surrogate, and to obtain an order confirming the report, For Payment of Debts aitd Funeeal Expenses. 75 before giving a deed of conveyance of the property to the pur- chaser at the sale, is a fatal defect. Stilwell V. Swarthout, Court of Appeals (1880), 81 K Y. 109. Effect of Confirmation. It was held that where an application was made to the Court of Chancery for confirmation of a sale of real property, made- by order of the surrogate, having jurisdiction, the investiga- tipn should be limited to the fairness and good faith of the sale, and that it was incompetent to inquire into the regularitj' and propriety of previous proceedings before the surrogate, but that the decree of confirmation should confirm the sale only re- specting defects or regularity in question, and should not pre- clude adverse parties from contesting on other grounds. Bostwick Y. Atkins, Court of Appeals (1849), d N. Y. 53. When the petition states facts sufiicient to confer jurisdic- tion upon the surrogate to make the order of sale, the decree should have the same effect as a judgment of a court of general jurisdiction to protect hona fide purchasers. Per Morgan, J., Woods v. M'Chesney, Supreme Court, Onon- daga General Term (1863), 40 Barb. 417. Prior Purchases from Heirs. Section 2777. A conveyance of real property, made pursuant to this title, does not affect in any way the title of a purchaser or mortgagee, in good faith and for value from an heir or devisee of the decedent, unless letters testamentary or letters of administration, upon the estate of the decedent, were granted, by a Surrogate's Court, having jurisdiction to grant them, upon a petition therefor, presented within four years after his death. Prior Sales of Same Property. The administrator or any creditor of the decedent may obtain a decree from the surrogate at any time within three years from the time of issuing letters of administration, for the sale of the real estate to pay debts ; and a pi'evions sale of the real estate, in partition, by the huirs-at-law, by an order of the court, does not divest the surrogate of this power to decree a sale under the statute. The lieirs take the land subject to the right of the creditors to sell, which is paramount to the title of the heir. 76 Disposition of Decedent's Keal Estate Hall V. Partridge, Supreme Court, New York Special Term (1853), 10 How. 188. Purchaser's Title Paramount to Conveyances from Heir. The decedent's real estate, of which he died seized, remains h'able to be sold for payment (if debts in case of a deficiency of personal assets, for the term of three years, and this liability to be sold is a kind of statutory lien, running with the land dur- ing that period and attaches to the lands in the hands of a subsequent purchaser. While the heirs and devisees may con- vey such real estate at any time after the death of the decedent." yet if they convey before the expiration of three years, the lands pass subject to the power of the surrogate to direct a disposition of the same for the payment of debts and funeral expenses. In case of the necessity of such sale to satisfy the debts and funeral expenses of the decedent, the title at the sale under the surrogate's decree will be paramount to all titles through the heirs or devi^ee8 and will convey the estate, pre- cisely as it was left by the decedent. Hyde v. Tanner, Supreme Court, Dutchess Special Term (1847), 1 Barb. 75. See Jewett v. KeenhoUs, Albany General Term (1853), 16 Barb. 193. Protection of Mortgagee from Heir. Chapter 845 of Laws of 1869, as amended by chapter 211 of Laws of 1873, applies to and protects one taking a mortgage upon the real estate within the times therein specified, provided the said time has elapsed before proceedings to sell the land lor decedent's debts have been commenced. Fonda v. Chapman, Supreme Court, General Term, Third De- partment (1880), 23 Hun, 119. Effect of Conveyance. Section 2778. Except as prescribed in the last section, a con- veyance of real property, executed upon a sale thereof, pursu- ant to this title, vests in the grantee all the estate, right, and interest of the decedent in real property so conveyed, at the time of his death, free from any claim of his widow for dower, which has not been assigned to her; but subject to all subsist- ing charges thereon by judgment, mortgage, or otherwise, whicli existed at the time of his death. Where dower has been assigned to the widow, the grantee takes the part of the prop- erty to which her estate iu dower attaches, subject thereto. FoK PA'iMEirr OF Debts and Pukkkal Expestses. 77 Effect of Sale. A sale of a decedent's real estate at a judicial sale does not convert it into personal property. Hoevy V. Kinney, Supreme Court, Special Term (1860), 10 Abb. Pr. 400. A sale or conveyance by the representative under t!ie surro- gate's order, passes all the estate, right and interest of the de- cedent at the time of his deatii, and ousts the title of the heirs and of all persons claiming under them. The statute recog- nizes the title of the heirs tu the surplus moneys. Sears t. Mack's Assignees, New York County Surrogate's Court (1853), 2 Bradf. 394. An order giving authority to lease real estate is not a revo- cation of a previously-made order for the sale thereof, as such powers may weW exist together. Jackson v. Irwin, Supreme Court (1833), 10 Wend. 441. Purchaser's Title Prior to Unrecorded Sheriff'' s Deed. The title acquired by a purchaser at a sale under order of the surrogate for payment of a decedent's debts has priority over an unrecorded deed of a purchaser of the same property at sherifE's sale. Barto V. Tompkins County Bank, Supreme Court, General Term, Third Department (1878), 15 Hun, 11. Purchaser' s Title Siibject to Inoumhrances. The purchaser at a sale of decedent's real estate takes the property subject to all previous incumbrances thereupon, and if he wishes to obtain a free title, the amount of the incum- brance must be ascertained before the sale, and the premises sold on condition that this amount shall be paid out of his bid upon the property, and the residue only of the bid returned to the surrogate as proceeds for distribution. Butler v. Emmet, Chancery (1839), 8 Paige, 12. Purchaser's Might to Growing Crop. Whoever sows a crop upon land in the possession of an heir or devisee during the three years within which such real estate is liable to be disposed of for the payment of debts and funera!! expenses, does so at the risk of losing his crop in case of a 78 Disposition of Decedent's Eeal Estate sale before he can remove the same, as in case of a sale under order of the surrogate, the purchaser is entitled to the grow- ing crops thereon. Jewett V. KeenhoUs, Supreme Court, Albany County General Term (1853), 16 Barb. 193. A purchaser of land at an administrator's sale, made by order of the court to pay decedent's debts, has no right to cordwood cut and piled and crops growing on the land at the time of his purchase. Barrett v. CJioen, Supreme Court, Indiana (1889), 30 N. E. Eep. 145. Compelling Purchaser to Take Title. A Surrogate' s Court has no jurisdiction under this title to compel a purchaser at the sale to accept the deed and pay the balance of the purchase-money. The purchaser is not and cannot be made a party to such special proceeding. Cromwell t. Phipps, Westchester County Surrogate's Court, (1888), t) Dem. 60. (Citing and following Wolf v. Lynch, 2 id. 610; distinguishing s. c, 33 Hun, 309.) A Surrogate's Court has no power in a proceeding under this title to compel a purchaser at a sale to complete his pur- chase and comply with the terms of sale, or to pay the money and take the title. The purchaser is in no sense of the word a party to the proceeding, and any order which the court might make against him would be a nullity. In re Estate of Belleshiem, Westchester Surrogate's Court (1888), 1 ]Sr. Y. Supp. 276. (Citing WolfY. Lynch, 2 Dem. 610; and distinguishing s. c, 33 Hun, 309.) s. c, 17 N. Y. State Eep. 10. The fact that the purchaser comes into court and submits the question to the decision of the surrogate does not give the surrogate power to adjudicate, as he is a stranger to the proceedings and his consent cannot confer jurisdiction. In re Estate of Belleshiem, supra. Surrogates' Courts do not possess the general powers of courts of equity to coerce the purchaser and compel him to take title. Per curiam, Cromwell v. Phipps, supra. Foe Payment os Debts and Funeral Expenses. 79 Purchaser'' s Right to Appeal. An order of the surrogate vacating a sale of real estate made by an administrator under a previous order of the surro- gate, is an order fr6in which the purchaser at the sale, who has complied with the terms of the sale, or any other aggrieved party, may appeal. The purchaser lias an inchoate right, which entitles him to a hearing. Delaplaine v. Lawrence, Chancery (1844), 10 Paige, 603. If an appearance before the surrogate upon the application for confirmation of the sale is necessary to give the purchaser such right of appeal, the appearance of the administrator on behalf of himself and such purchaser is sufficient ; if the pur- chaser desires notice of the proceedings, to enable him to liti- gate the question of confirmation, he should file a caveat and demand notice of confirmation. Delaplaine v. Lawrence, supra. Sales Subject to Contract Payments. Section 2T79. "Where any of the property to be sold consists of an interest, under a contract for the purchase of real property, and any payment is yet to be made upon the contract, the sale must be made subject to all payments, thereafter to become due thereupon ; and it may, also, if the decree, or the order to exe- cute the decree, so directs, be made subject to all payments, pre- viously due thereupon. If the sale is subject to any payment, the terms of sale must specify the penalty and the number of sureties, required in the bond to be given by the purchaser, as prescribed in the next section, and must state to what payments the sa.le is subject. Purchaser'' s Bond. Section 2780. Where a sale is made subject to any payments, as specified in the last section, the purchaser must, before the sale is confirmed, execute to the executor or administrator of the decedent, his bond, with sureties, for the benefit and in- demnity of the obligee and his successors, and, also, the persons entitled to the interest of the decedent in the lands so con- tracted for, in a penalty at least twice the amount of all the payments, subject to which the sale is made ; conditioned that 80 Disposition of Dscedent's Keal Estate the purchaser will pnnctnally make all those payments, and will fully indemnify the obligee and his successors, and each of the persons so entitled, against all demands, charges, costs, and ex- penses, by reason of any thing contained in the contract, or by reason of any other obligation or liability of the decedent, on account of the purchase of the property ; and against all other covenants and agreements of the decedent, to and with the vendor of tlie property, in relation thereto. Penalty of Bond on Sale. The penalty of the bond given on the sale of land subject to a mortgage must be double the value of the property to be sold. The allegations of the petition as to the valne are not conclu- sive and a less value may be established as the basis of the pen- alty when the evidence warrants, and no objection is taken. Jackson v. HolUday, "Westchester County Surrogate's Court (1879), 3Eedf. 379.' Note. — The appraisers' report is now taken as the basis for fixing the penalty of the bond. Sale of Part Interest under Oontract. Section 2781. But where an interest under contract for the purchase of real property is liable to be sold, as prescribed in this title, tlie decree, or the order for the execution thereof, may direct a sale of the decedent's interest in a part only of the property, if, in the opinion of the surrogate, such a sale can be made advantageously to the estate of tlie decedent, and so that the purchase-money of the part sold will satisfy and discharge all the payments, to be made for all the property contracted for, according to the contract. In such a case, the purchaser is not required to execute a Iwnd. Effect of Conveyance of Contract Interest. Section 2782. A conveyance of the decedent's interest in all the real property, held by him under a contract for the pur- chase thereof, operates as an assignment of the contract to the purchaser ; and vests in him, his heirs and assigns, all the right, title, and interest of all ttie persons entitled, at the time of the sale, in and to the decedent's interest in the real property. Foe Payment of Debts and Funeral Expenses. 81 Subrogation of Decedents Oontrdct Interest. Sectioa 2783. A conveyance of the decedent's interest in a part only of the real property, held under such a contract, transfers to the purchaser all the decedent's right, title and interest in and to the part so sold ; and all rights, which would be acquired thereto, by the executor or administrator, or by any person entitled, at the time of the sale, to the interest of the decedent therein, by perfecting the title to the property contracted for, pursuant to the contract. Upon fully comply- ing with the contract, the purchaser has the same right to en- force performance thereof, with respect to the part conveyed to him ; and the executor or administrator, or his assignee, has the same right to enforce performance, with respect to the residue, as the decedent would have had, if he was living. Any title acquired by the executor or administrator, or his assignee, with respect to the part not sold, must be held in trust for the use of the persons entitled to the decedent's in- terest ; subject to the dower of the widow, if any. Irregularities not Affecting Proceeding. Section 2784. The title of a purcliaser in good faith, at a sale pursuant to a decree made as prescribed in this title, is not, nor is the validity of a mortgage or lease made as pre- scribed in this title, in any way affected by any of the follow- ing omissions, errors, defects, or irregularities ; except so far as the same would affect the title of a purchaser at a sale, made pursuant to the directions contained in a judgment, rendered by the Supreme Court in an action : 1. Where a petition was presented, and the proper persons were duly cited, and a decree directing a mortgage or lease, or a decree for a sale, and an order directing the execution thereof were made, as prescribed in this title ; and the decree, and the order, if any, were duly recorded, as prescribed in article first of title first of this chapter : by any omission, error, defect or irregularit}', occurring between the return of the citation, and the making of the decree, or the order directing the execution of the decree. 2. Where an order, confirming a sale and directing a con- 11 " ' 82 Disposition of Decedent's Real Estate veyancej has been made, upon proof, satisfactory to the surro- gate, that all the acts have been done, which are required by law to be done, after the order directing the execution of the decree, to authorize the surrogate to naake such an order of confirmation : by the actual omission to do such an act, or by any error, defect, or irregularity in tlie same, or by any omis- sion in the recitals of the conveyance. "Where, in a proceeding for disposition of a decedent's real property, the citation was duly served on certain infants, in- terested in the estate, under the age of fourteen years, residing within the State, and a special guardian having been appointed, before the hearing, on the parents' application, without the notice to the infant required by section 2531 of the Code of Civil Procedure, it was held that under subdivision 1 of section 2784 of the Code of Civil Procedure, the omission was not of such a character as that it " would afiEect the title of a purchaser at a sale made pursuant to the directions contained in a judg- ment rendered by the Supreme Court in an action," and that purchasers at the sale could not take advantage of such omis- sion. Price T. Fe7in, New York County Surrogate's Court (1885), 3 Dem. 341. The statutory provisions that sales under the title for dispo- sition of decedent's real estate for payment of debts and funeral expenses (3 E. S., 6th ed., 113, §§ 38, 39, 40), provid- ing that sales shall not be adjudged invalid for certain irregu- larities specified have no application to the rights of persons not parties to the proceedings. Wilson V. White, Court of Appeals (1888), 109 N. Y. 59. Wh^n Appointment of Ouardian Presumed. Section 2785. "Where the records of the Surrogate's Court have been heretofore, or are hereafter, removed from one place to another, in either the same or another county, and twenty-five years have elapsed after a sale or other disposition of real property, or of an interest in real property, as prescribed in this title, the due appointment of a guardian for each infant party to the special proceeding must be presumed, and can be disproved only by affirmative record evidence to the contrary. For Paxmen-t op Debts akd Funeral Expenses. 83 CHAPTER X. DISTRIBUTION OF THE PROCEEDS. Money to ie Deposited With County Treasurer. Section 2786. The proceeds arising from a mortgage, lease, or sale, made as prescribed in this title, must be paid into the Surrogate's Court by the executor, administrator, or free- holder receiving the same. For that purpose, he must pay them to the county treasurer, to the credit of the special pro- ceeding, to be retained by him as prescribed iu section 2537 of this act. Upon payment being so made, the heirs and devisees of the decedent, and their assigns, and all the dece- dent's remaining real property, and interest in real property, held under a contract for the purchase thereof, are exonerated from the debts established by the decree, or established as pre- scribed in the next section but one, as far as the proceeds so paid over are sufficient, after deducting the costs and ex- penses allowed by the surrogate, to satisfy those debts. Notice of Disirribution. Section 2787. Immediately after the payment into court of the proceeds of a mortgage, lease, or sale, as prescribed in the last section, the surrogate must cause notice of the time and place of making the distribution, to be published, at least once in each of the six weeks immediately preceding the same, in a newspaper published in the county of the surrogate. Hearing Proofs of Claims. Section 2788. At the time and place designated in the notice, or at the time and place to which the hearing is ad- journed, the surrogate must hear the allegations and proofs of the creditors, and of the persons interested in the estate, or in the application of the proceeds, respecting any demands against the decedent, or for his funeral expenses, then pre- 84 Disposition of Decedent's Keal Estate sented, wliicli had not been established or rejected, before making the decree. The provisions of this title, relating to contesting and establishing debts, and preserving the evidence thereof, before making the decree, apply to the proceedings respecting any demand so presented. A debt, which was established by the decree, may be again controverted, upon the hearing provided for in this section, upon the discovery of new evidence impeaching the same, and upon such a notice to the claimant as the surrogate directs, but not otherwise. Property Sold to Pay Legacies. It was held that if the real estate was ordered sold for the payment of legacies, the surrogate had power to compel dis- tribution at the instance of either creditors or legatees. Bloodgood v. Bruen, New York County Surrogate's Court (1851), -Z Bradf. 8. Disposition of Unsold Property. Section 2789. Where the decree was executed with respect to a part only of the real property, or interests in real property, specified therein, and the proceeds of the sale are insufficient, after paying the costs and expenses thereof, to satisfy all the debts established by the decree, together with the demands established as prescribed in the last section, and all other sums payable out of the same, as prescribed in this title, the surrogate must make an order, as prescribed in section 2768 of this act, directing the execution of the decree, with respect to the re- mainder, or so much thereof as is necessary. The proceedings thereupon and subsequent thereto are the same, as upon and subsequent to the first order for the execution of the decree. Property in Different States. As to distribution of the proceeds of a sale of real estate made in this State, when administration is granted upon the same estate in different States, and as to the principles govern- ing cases of double administration, see Lawrence v. Elmendorf, Supreme Court, New York Special Term (184:8), 5 Barb. 73. Claims to Surplus Money. Section 2790. Upon the hearing, provided for in the last section but one, or upon the hearing after the further execu- For Payment of Debts and Funekal Expenses. 85 tion of the decree, as prescribed in the last section, the surrogate must also hear the allegations and proofs of any person, who claims a right to the surplus nionej', or any part thereof. A claim so made may be contested by any other person making a like claim. Proceeds of Sale Not Suhjent to Action. An action cannot be maintained to reach the proceeds of a sale of real estate in the hands of the administrators; the fund is under the exclusive jurisdiction arid control of the surrogate; in order to reach it proceedings may be instituted before the surrogate to compel a report of the administrators, the distri- bution of 'the fund and the payment of a demand. Stilwell V. S^varthout, Court of Appeals (1880), 81 N". Y. 109. After a sale, which was void for jurisdictional defects, the administrators procured mortgages on the property to be fore- closed, and title was then obtained in the purchaser under order of the surrogate, a surplus remaining in the hands of the administrators after payment of the mortgage. In an action against the heirs and the administrators to compel application of this surplus to payment of decedent's debts it was held that the administrators were not liable as the fund represented real estate, and was only held by them as trustees for the owners, i. e., the heirs-at-law and the widow, and was not held by the administrators in a representative capacity. It was also held that the heirs could only Ije made liable in the manner pre- scribed by statute, and that this action could not be maintained against them. It was also held that the plaintiffs were not entitled to specific equitable relief as they had not exhausted their legal remedies. Stihvell V. Swarthout, supra, Sujpplementary Decrees. Section 2791. The surrogate must, by a supplementary de- cree, made and recorded in like manner as the first decree, determine the rights of the creditors and other persons inter- ested, to share in the proceeds, and direct the distribution thereof accordingly. Where the rights of creditors are estab- lished, and there is a surplus, respecting the distribution of which a contest arises, he may make a supplementary decree, providing for the payment of the creditors only ; and reserving all questions, as to the distribution of the surplus, to be settled 86 Disposition" of Decedent's Keal Estate by a second supplementary decree. An appeal may be taken from either of tlie supplementary decrees, by any person aggrieved thereby, as from the first decree; except that it is not necessary or proper, to make any creditor a party to an appeal from tlie second supplementary decree. Supplementary Decree to Adjust Costs. In these proceedings the costs of none of the parties can be fixed or adjusted so as to be embraced in the decree directing a sale, mortgage or lease, but this can only be done at the time of the entry of the supplementary decree described in section 2793. Costs awarded against executors can in no event be a charge upon real estate in the hands of an heir. Sandford v. Granger, Supreme Court, Saratoga General Term (1853), 13 Barb. 393. The surrogate, and not a justice of the Supreme Court, is the proper officer to apply to for an order directing the payment of an allowance and costs in a proceeding in Surrogate's Court for the sale of a decedent's real estate, and the attorney should apply for costs in a Supreme Court action upon the distribution. Clark T. Igglesden, Westchester Surrogate's Court (1878), 3 Kedf. 339. Creditors Not Entitled to Costs. In a' proceeding for the disposition of a decedent's real estate, for payment of debts, a creditor other than the petitioner, whose claim has been contested and allowed cannot be awarded costs under section 2561 of the Code of Civil Procedure, notwith- standing the general character of that section, inasmuch as no provision for the payment of such costs is made by .section 2793, after compliance with the directions of which section , the entire proceeds of the disposition will have been exhausted. In such proceeding no costs or allowances can be granted to a petitioning creditor, the right to an award thereof being eon- lined by section 2563 to the executor or administrator, and a freeholder appointed to execute the decree. Long V. Olmstead, Westchester County Surrogate's Court (1885), 3Dem. 581. Supplementary Decree to Fix Paymerhts. Section 2792. Each supplementary decree must fix the sums to be paid or invested, as prescribed in the following sections of Fob Patmbkt of^Debts and Funbbal Expenses. 87 this title, as far as they can be then fixed. If any sum cannot be then fixed, it may be fixed by the order of the surrogate subsequently made. The surrogate must cause a certified copy of each supplementary decree, and of each order, to be deliv- ered to the county treasurer, who must distribute, pay over, or invest the proceeds in his hands, as directed thereby. Order of Distribution. Section 2793. Money paid into the Surrogate's Court, as prescribed in this title, must be distributed by the supplement- ary decree in the following order : 1. The charges and expenses of the mortgage, lease, or sale, and of the publication of the notice of distribution, and the other actual disbursements attending the distribution, must first be paid. 2. Where an interest under a contract for the purchase of real property was sold, all sums of money, which were due at the time of the sale, pursuant to the contract, and were not assunved by the purchaser, must next be paid out of the pro- ceeds of the sale of that interest. 3. Out of the remainder of the money arising upon a sale, the claim of dower of the decedent's wife, if any, which has not been assigned to her must be satisfied, by setting apart, for investment, one-third of the gross proceeds of the property, to which her right of dower attaches ; unless, within such time, and upon such a notice to her, as the surrogate deems reason- able, she presents an instrument under seal, acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, whereby she consents to accept, in lieu of her dower, a sum, to be ascertained by the surrogate, equal to the value of her right of dower in the gross proceeds, according to the principles applicable to life annuities; and, if she presents such an instrument, by paying to her such a sum. If it shall appear to the surrogate that the decedent's widow is an infant, lunatic, or otherwise incompetent, and that a general guardian or committee has been appointed, upon proof that it will be for the best interest and advantage of the estate of such infant, lunatic or incompetent widow, the surrogate must authorize and direct such guardiaij or committee, in the name of such 88 DISP0SITI03S' OF Decedbkt's Eeal Estate infant, lunatic or incompetent widow, having such dower right, to execute an instrument under seal, acknowledged or proved and certified in like manner as a deed to be recorded in the county, whereby such guardian or committee shall consent to accept in lien of dower a sum to be ascertained by- the surro- gate as above provided according to the principles applicable to life annuities ; and upon presentation of such an instrument to the surrogate, the value of the right of dower so ascertained by him shall be paid to snch guardian or committee. Such instru- ment shall have the same force and effect as a deed or instru- ment executed and acknowledged by a competent person. (Amended 1886.) 4. Out of the remainder of the money, arising upon a mort- gage, lease, or sale, must be paid the costs of the special pro- ceeding, awarded to the petitioner in the decree. 5. Out of the remainder of the money, must be paid the sum, if any, which has been found to be due to the^ executor or administrator, upon a judicial settlement of his account, after applying thereupon the proceeds of the personal property. But this subdivision does not authorize the repayment, to an executor or administrator, of any sum paid to him by a creditor of the decedent, exceeding the proportion which that creditor would be entitled to receive from the estate of the decedent, upon the distribution of all the assets of the decedent, and the proceeds of property disposed of as prescribed in this title. 6. Out of the remainder of the money, must be paid, in full, the reasonable funeral expenses- of the decedent, to the persons whose claims therefor were established and recited as debts, in the first decree, and were not rejected upon the second liearing. 7. Out of the remainder of the money, must be paid, in full, the other debts, which were established and recited in the first decree, and were not rejected upon the second hearing; or, if there is not enough for that purpose, they, or so much thereof as the money applicable thereto will pay, must be paid in the order prescribed by law for payment of a decedent's debts by an executor or administrator out of the personal assets, without giving preference to rent, or to a specialty, or to any demand on account of 'an action pending thereupon ; and pay- ing debts not yet due, upon a rebate of legal interest. Foe Payment of Debts and Funeral Expenses. 89 8. Out of the remainder of the money, must be paid, in like manner, the debts first established by the supplementary decree, or so much thereof as the remainder will pay. 9. If any surplus remains, it must be distributed among the heirs and devisees of the decedent, or the persons claiming under them, and among those persons who have presented and proved liens upon the interests of those heirs or devisees, or persons claiming under them, which were cut ofE by the sale ; accord- ing to their respective rights and priorities, as established in the supplementary decree. But if the proceeds of any of the property sold had been, or were to be, converted into personal property, pursuant to a direction contained in the decedent's will, the surplus proceeds of that part of the property must be paid to the person entitled thereto, by the terms of the will. Judicial Interpretation of the Statute. " The section (subdivision 7) is ambiguous andisinartificially drawn, and at the first glance there would seem to be doubt as to its true construction and meaning ; but upon a careful ex- amination of the section in connection with the revisers' notes and the former statute, we are convinced that the true meaning and intent will be better arrived at by transposing the words after the second semi-colon (' and paying debts not yet due,' etc.) to a position immediately after the words 'second hear- ing,' before the first semi-colon, thus placing debts not yet due upon the same footing with those established by the first decree. This is the only construction that gives the subdivision an intelligible meaning, and the last clause of the subdivision would be utterly meaningless, under any other construction that has been suggested." Kennedy, Surrogate, in Estate of Wilcox, Madison County Surrogate's Court (1887), 11 Civ. Proc. 115-27; S. C, 13 N. Y. State Eep. 161. It is not the policy of the law to prefer the payment of a debt which is due to another which is not due, and as the only provision for payment of a debt not due contained in the whole of Title V, is contained in subdivision 7 of section 2793, and provision for its payment being there made, the conclusion is irresistible that it is to be paid with the other debts provided for in that subdivision. Per Kennedy, Surrogate, in Estate of Wilcox, supra. la 90 Disposition of Dbcedbkt's Ebal Estate The learned surrogate of "Westchester county was of the opinion that the last clause of subdivision 5 of section 2793 of the Code of Civil Procedure was superfluous and inoperative, being based upon the idea that an accoiinting has been had, in which a balance has been found due the executor or administra- tor, embracing debts which have been paid in full. Shute v. Shute, Westchester County Surrogate's Court (1886), 5 Dem. 1-7. The provisions of section 2793 of the Code of Civil Proced- ure, prescribing the order of distribution of the proceeds of a sale, lease or mortgage of a decedent's real estate, apply as well to a ease when all of the decedent's real estate has been dis- posed of in the proceedings as' where a part of it only is aflEected. Kenyan v. Talbot, Otsego County Surrogate's Court (1884), 2 Dem. 548. After the sale and conveyance of a decedent's real estate, and upon the day of the distribution of the proceeds of the sale, the sheriff exhibited to the surrogate an execution against one who was entitled to a share in the proceeds, and asked that such share be applied on the execution, the judgment not having been docketed in the county of the surrogate until the day of distribution, and upon the refusal of the surrogate, an order was obtained from the county judge for the examination of the surrogate, and forbidding him to make any disposition of the funds. It was held that while the county judge could order such examination, he had no power to restrain the disposal of the fund, and that the judgment not being a lien at the time of the sale of the premises, payment of the share must be made to heirs, or to such person as may be appointed in supple- mentary proceedings to receive it. Davis V. Davis, Westchester County Surrogate's Court (1879), 4 Eedf. 355. When testator, by his will, gave and devised all estate, real and personal, to his wife, so long as she remained a widow, making no disposition of the remainder, which accordingly de- scended to his heirs-at-law, and the executrix applied for an ■ order to sell such real estate, showing an insufficiency of per- sonal assets, and prayed that she be allowed to first sell the re- versionary interest of the heir" therein, claiming the remainder should first be sold, and applied to the payment of debts, or that the value of her life-estate should be computed and de- ducted from the proceeds of the sale, and the residue of the es- Foe Payment of Debts akd Funeeal Bxpenses. 91 tate applied to pay debts before any of her life-estate should be appropriated for that purpose, the surrogate made a decree au- thorizing a sale of the land, and directing that the proceeds be applied in payment of debts, taking no notice of nor giving no preference to the estate of the tenant for life over that of the remainderman. Upon appeal it was held that this decree was correct and that petitioner's contention for a rule of distribu- tion was inconsistent with the statute. Pelletrau v. Smith, Supreme Court, Kings General Term (1859), 30 Barb. 494. Priority of Debts. Under subdivisions 7 and 8 of section 2793 of the Code of Civil Procedure, debts established at the first hearing and re- cited in the first decree are entitled to a preference in payment over those established by the supplementary decree, although all the real property has been sold and the proceeds are insuf- ficient to pay the former class of debts in full. Kenyo7i v. Talbot, Otsego County Surrogate's Court (1884), 2 Deni. 548. Under the former provisions.of the Revised Statutes, claims proven upon the second hearing stood upon an equal footing with those established by the first decree, and no preference or priority was given between debts of the same class, but a radi- cal change was made by the Code' of Civil Procedure, and claims established by the first decree are entitled to priority of payment over those proven upon the hearing for distribution, except in the case of a debt not due at the time of the first hearing, which may be established upon the distribution, and will be entitled to a pro rata payment with such first estab- lished debts. Estate of Wilcox, Madison County Surrogate's Court (1886), 11 Civ. Proc. 115. If an administrator redeems the property of his decedent from tax-sale and pay the taxes thereon, in order to prevent loss or waste, such sum with interest should be allowed as a preferred claim against the decedent, and he should be subro- gated to the right the State had against the property for unpaid taxes, although strictly speaking an administrator has nothing to do with such real estate. Estate of Le Baron, Kings County Surrogate's Court (1884), 6 N. Y. Civ. Proc. 63. 93 Disposmoiir of Decedekt's Eeal Estate Judgment Creditor Must Share Pro Rata. During the pendency of an action against an executor for misappropriation of moneys belonging to an estate, lie died, and his own executor was thereafter established as a party defend- ant in the original action in which judgment was recovered, which judgment and costs defendant was directed to pay out of the estate. The real estate of the deceased executor was sold by order of the surrogate. Upon distribution of the pro- ceeds, it was held that the judgment-creditor was not entitled to a preference for the damages recovered over the other cred- itors of the deceased executor, but should share pro rata in .the distribution. Also that the costs of the suit were not pay- able out of said proceeds. Matter of Fox, Court of Appeals (1883), 92 N. Y. 93. Individual and Co-partnership Creditors. In distributing the proceeds of the sale of a decedent's real property, where claims were interposed by separate and by co- partnership creditors, it was held the legal priority of the separate creditors would not be disturbed in equity. If, after payment of the separate creditors, any surplus remains, it may be applied to the payment of- partnership debts, in an equitable proportion. North River Bank v. Stetvart, New York County Surrogate's Court (1857), 4 Bradf. 354-. What Debts Can he Paid. On distribution of the proceeds of the sale of a decedent's real estate, the fund can only be applied for the payment of such debts as would authorize a sale of the property. Allow- ances in the contest of a will or expenses of the administration cannot be paid out of such fund. Bstate of Meahim, Kings County Surrogate's Court (1884), 5 N. Y. Civ. Proc. 421. The first sentence of subdivision 5 of section 2793 of the Code of Civil Procedure, authorizes the payment, out of the money so realized, of a sum so found due, although it repre- sents the costs and charges incurred and paid to the claimant's attorney during the progress of the administration. 8hute v. Shute, Westchester County Surrogate's Court (1886), 5 Dam. 1. (Disapproving Smith v. Meahim, 2 Dem. 129: s. c, 5 N. Y. Civ. Proc. 421.) FoK Payment of Debts akd Pdnekal Expenses. 93 Compensation of Fersonal Representatives. Section 2563. Upon the disposition of real property of a decedent, as prescribed in title iifth of this chapter, the ex- ecutor, administrator, or freeholder, disposing of the property, must be allowed by the surrogate, ont of the proceeds' of the sale brought into court, his expenses; and he may be allowed, out of the proceeds, a reasonable sum for his own services, not exceeding five dollars for each day, actually and necessarily occupied by hira in disposing of the property, and such a further sum as the surrogate thinks reasonable, for the necessary services of his attorney and counsel therein. The administrators should prove the number of days neces- sarily occupied in order to obtain the statutory per diem allow- ance for time spent in making the sale, and two dollars per day for one hundred and sixty days was held to be excessive. The statute does not contemplate employing the administrator upon a salary. Higbie v. Westlake, Court of Appeals (1856), 14 K Y. 281. Administrators are entitled to but two dollars for preparing and executing each deed. Higbie v. Westlake, supra. Proceeds of the sale of a decedent's real property, made by the executors pursuant to the will, are to be reckoned as part of the personal estate, for the purpose of an allowance of com- missions under section 2736 of the Code of Civil Procedure, according to which, threefold commissions are distributable among three or more executors, according to the services by them rendered respectively in certain cases. Smith v. Buchanan, Albany County Surrogate's Court (1886), 5 Dem. 169. Adjournment of Distribution. As to whether surrogate sliould not delay tiie hearing upon claims, and the making of distribution, until pending action in the Supreme Court, to make decedent personally liable or his estate chargeable for misappropriating funds belonging to the relator, qumre. People v. Westbrook, Supreme Court, Washington Countv Spe- cial Term (1851), 61 How. 138. 94 Disposition of Decedent's Eeal Estate Proceeds Distributed as Personal Property. The proceeds of the sale of real property are to be distribu- ted in the same manner as those from a sale of personal prop- erty, and there is no longer any distinction between legal and equitable assets. Bloodgood v. Bruen, Ifew York County Surrogate's Court (1851), 3 Bradf. 8. The creditors must look to it that the proceeds go to the sat- isfaction of debts. Van Voorst, J., White v. Kane, New York Superior Court (1885), 7 Civ. Froc. 267-73; s. C, 51 Super. Ot. (J. & S.) 295; 1 How. Pr. (N. S.) 382. The surrogate has power to call the representatives to account for the proceeds of a sale of decedent's real estate, and to com- pel distribution the same as if they had been personal property. Bloodgood v. Bruen, supra. Creditor's Appeal from Distribution. A creditor may appeal from a decree of distribution made by a surrogate, notwithstanding he receives on accoujit of his demand, the amount awarded to him by such decree. Higlie v. Westlahe, Court of Appeals (1856), 14 N. Y. 281. Estoppel of Infant from Contesting. An infant heir is not, by accepting the money arising from a sale of her estate, and saying after becoming of age that she is satisfied with it, estopped from denying validity of the sale, when no one is influenced by such statement to buy the land or to do any other act by which he would be prejudiced were the heir allowed to assert her title to the premises. AcMey v. Dygert, Supreme Court, Monroe General Term (1860), 33 Barb. 176. Securities in County Treasurei's Name. Section 2800. Except as otherwise specially prescribed in this title, a security taken or an investment made, pursuant to any provision thereof, must be taken or made in the name of the county treasurer, adding his official title, and his successors in office. Each security so taken, and all the papers connected PoK Payment of Debts and Funeral Expenses. 95 therewith, or with siich an investment, and each lease, taken as prescribed in this title, must be immediately delivered to the surrogate for his approval ; and, when approved by him, must be delivered to the county treasurer, who must, from time to time, collect the money due thereupon, and apply it, under the direction of the surrogate, as prescribed by law for that purpose, or for the application of the money represented by the security. 96 Disposition of Decedent's Keal Estate CHAPTER XI. DOWER IN PROPERTY DISPOSED OF. Dower in Contract Interest. Section 2794. The claim of dower of the decedent's wife, in real property held by tlie decedent, under a contract for the purchase thereof, which must be satisfied, as prescribed in sub- division third of the last section, extends only to the annual interest, during her life, upon one-third of the balance remain- ing, after deducting from the money arising upon the sale, all sums due from the decedent, at the time of the sale, for the real property so contracted and sold. On a sale of lands by order of the surrogate to pay debts of a decedent, the portion of the purchase-iiioney to be set apart and invested for the widow in lieu of dower, pursuant to 2 Revised Statutes, 106, section 37, is the one-third of the gross amount, and not of the amount less the charges and expenses of the sale. Higlie v. Westlake, Court of Appeals (1856), 14 IST. Y. 281. When insolvent testator devised all his real estate to his wife, not directing that it be in lieu of dower, and on her ac- counting said devisee asserted her claim for dower out of pro- ceeds of real estate when sold, it was held that such devise was not necessarily nor by implication inconsistent with the claim of dower, and that her title to the real estate was not thereby rendered defective. WMte V. Kane, ISTew York Superior Court (1885), 7 Civ. Proc. ;i6r; s. c, 51 Super. Ct. (J. & S.) 395; 1 How. Pr. (N. S.) 382. Where interest in the purchase-price accrues after the sale, and before the distribution, one-third of it belongs to the widow. Higbie v. Westlahe, supra. For Payment of Debts and Funeral Expenses. 97 Investment of Dower. ■Section 2795. Tlie surrogate must cause a sum set apart for a widow's dower, as prescribed in the last two sections, to be invested by the county treasurer, under the direction of tiie surrogate, in the public securities of the State, or of the United States, or in permanent mortgage securities, bearing interest payable annually, or oftner. The interest, or other income, must be paid by the county treasurer to the widow, during her life. After her death, the county treasurer, under the direc- tion of the Surrogate's Court, manifested iu an order duly entered, must sell the public securities, or collect the sums loaned upon mortgage, and distribute the proceeds, less the costs and expenses, as prescribed in the last section but one, for the distribution of the remainder of the money, after satisfying the claim fur dower. If real estate be devised to the widow of the testator for her life-time, and the remainder to lier children, and the property be sold under a judgment of foreclosure of a mortgage which was a lien upon the property at the time of the testator's death, the court cannot order the payment to the widow, out of the surplus, of a sum in gross representing her life estate, but must direct the investment of the fund and the payment of the income arising therefrom to her during her life-time, and the payment of the principal to the children upon her death. Estate of Zahrt, Surrogate's Court, Kings' County (1882), 2 N. Y. Civ. Proc. (Browne) 273. Computation of Dower. The dower of the decedent's wife is computed according to the Portsmouth or Northampton Table of Mortality, referred to in Supreme Court Rule Ko. 71, showing the value of an annuity of one dollar on a single life at five per cent interest, which is herein inserted for convenient reference. 13 98 Djsposition of Decedent's Eeal Estate Annuity Tahle. No of years' No. of years' No.ofyears' No.ofyears' Age. purchase the annuity Age. purchase the annuity Age. purchase the annuity Age. purchase the annuity is worth. is worth . is worth . is worth . 1 11.568 25 13.567 49 10.443 73 5.245 3 13.430 36 13.473 50 10.269 74 4.990 3 14.135 37 13.377 51 10.097 75 4.744 4 14.613 28 13.378 53 9.935 76 4.511 5 14.827 29 13.177 53 9.748 77 4.277 6 15.041 30 13.072 54 9.567 78 4.035 7 15.166 31 12.965 55 9.383 79 3.776 8 15.236 32 13.854 56 9.193 80 3.515 9 15.210 33 12.740 57 8.999 81 3.363 10 15.139 34 12.633 58 8.801 82 3.030 11 15.043 35 12.502 59 8.599 83 2.797 12 14.937 36 12.377 60 8.393 84 3.627 13 14.826 37 13.349 61 8.181 85 2.471 14 14.710 38 12.116 62 7.966 86 3.329 15 14.588 39 11.979 63 7.742 87 3.193 16 14.460 40 11.837 64 7.514 88 3.080 17 14.334 41 11.695 11.551 65 7.376 89 1.924 18 14.217 42 66 7.034 90 1.733 19 14.108 43 11.407 67 6.787 91 1.447 30 14.007 44 11.258 68 6.536 92 1.153 31 13.917 45 11.105 69 6.381 93 .816 32 13.833 46 10.947 70 6.033 94 .534 23 13.746 47 10.784 71 5.764 95 .238 24 13.658 48 10.616 73 5.504 Rule for Qomputation iy Table. Calculate the interest at five per cent for one year upon the sum to the income of wliich the person is entitled, and multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person. Suppose a widow's age is forty, and she is entitled to dower in real estate worth $1,500 ; one-third of this is $500 ; interest on $500, one year, at five per cent, is $25 ; multiply this by 11.837, the number of years' purchase set opposite her age, and we have $295.92 as the gross value of her dower right. Partition or Foreclosure not to Affect Proceedings. Section 2797. The commencement or pendency of an action or special proceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as prescribed in this title ; or the foreclosure by advertisement, For Payment of Debts and Fuxekal Expenses. 99 of a mortgage thereupon; or any proceeding to sell snch prop- erty, taken pursuant to a judgment, or by virtue of an execution, does not affect any of the proceedings taken as prescribed by this title, unless the surrogate so directs. After making a decree directing a mortgage, lease, or sale, the surrogate may, and, in a proper case, he must, stay the order to execute the decree, with respect to the property affected by the action, or special proceeding, or by the proceedings then pending, until the determination thereof, or the further order of the surrogate with respect thereto. If, in the course thereof, a sale of any of the property has been made, before making the decree in the Surrogate's Court, the decree must provide for the application of the surplus proceeds belonging to the decedent's estate. If such a sale is made afterwards, the directions contained in the decree, relating to the property sold, are deemed to relate to those proceeds. 100 Disposition of Decedent's Keal Estate CHAPTER XII. SURPLUS MONEY. . Disposition of Surplus Money. ? Section 3798. Where real property, or an interest in real property, liable to be disposed of as prescribed in this title, is sold, in an action or a special proceeding, specified in the last section, to satisfy a mortgage or other lien thereupon, which accrued during the decedent' s life-time ; and letters testamentary or letters of administration, upon the decedent's estate, were, within four years before the sale, issued from a Surrogate's Court of the State, having jurisdiction to grant them ; the surplus money must- be paid into the Surrogate's Court from which the letters issued. If the sale was made pursuant to the directions contained in a judgment or order, the surplus re- maining after payment of all the liens upon the property, chargeable upon the proceeds, which existed at the time of the decedent's death, must be so paid. If the sale was made in any other manner, the surplus, exceeding the lien to satisfy which the property was sold, and the costs and ex]>enses, must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. The receipt of the surrogate, or the clerk of the Surrogate's Court, or the county treasurer, as the case may be, is a suffi- cient discharge to the person paying the money. The words " within four years before the sale," as used in section 2798, and the words " making of the sale," in chapter 834 of the Laws of 1871, relating to the payment into the proper Surrogate's Court of moneys arising on the sale of real property, if letters testamentary have been issued within a certain time, refer to the date of the sale and not to the com- mencement of the action or proceedings terminating in the sale. White V. Pollen, Supreme Court, General Term, First Depart- ment (1881), 25 Hun, 69. For Payment op Debts and Funekal Expenses. 101 ', Distribution of Surplus Moneys. Section 2799. (Amended 1881.) Where money is paid into a Surrogate'e Court, as prescribed in the last section, and a petition for the disposition of property, as prescribed in this title, is pending before him ; or is presented at any time before the distribution of the money ; the money must be distributed as if it was the proceeds of the decedent's real propfTty, sold pursuant to the decree. If such a petition is not pending or presented, or if a decree for the disposition of the decedent's property is not made thereupon, a verified petition, praying for a decree, directing the distribution of the money among the persons entitled thereto, may be presented by any of those persons. Each person, who would be entitled to share in the distribution of the proceeds of a sale, must be cited to show cause, why such a decree should not be made. Service of the citation may be made upon all the persons designated therein, by publishing the same in two newspapers designated as pre- scribed in article first of title second of this chapter, at least once in each of the four successive weeks immediately preced- ing the return day thereof, except that personal service must be made upon, the husband, wife, heirs and devisees of the deced- ent, and also upon every other person claiming under them, or either of thein, who resides in this State. Upon the return of the citation, the rights and priorities of the persons interested must be established, and a decree for distribution must be made, as if it was the proceeds of real property sold. Surplus Moneys Distributable to Heirs, The surplus of the proceeds of a sale of a decedent's real estate, remaining after payment of debts, is distributable among the heirs of the decedent or the persons claiming under them. Sears v. MacJc's Assignees New York County Surrogate's Court, (1853), 2 Bradf. 394. Creditors of Heirs Have Lien on Surplus. If there are at the time of the sale any liens, either hy mort- gage, judgment or decree, against the portions of any of the heirs, it is equitable that in a claipa filed, such liens should be admitted as a valid charge against the shares of the heirs in the 102 Disposition of Decedent's Eeal Estate surplus. The equity of general-lien creditors is regulated by the priority existing at the time of the sale. Sears v. Mack's Assignees, supra. Fund Invested for Infants, etc. Section 2796. Where surplus money is distributable to an infant, or where the interest in the property represented by it consisted of a precedent estate and a remainder or reversion, the decree must provide, as the judgment of the Supreme Court would provide, in au analagous case, for the investment of the money in the public securities of the State, or of the United States ; or for the loan thereof, secured by bond and by mort- gage upon unincumbered real property within the State, worth at least, exclusive of buildings thereupon, twice the sum lent; and for the payment of the income, until the majority of the infant or the determination of the temporary interest ; and then, for the payment of the principal to the person or persons entitled thereto. Or where surplus money is distribu- table to an infant, the decree may, in the discretion of the sur- rogate, direct that the same be paid to his general guardian upon the latter giving such additional security, if any, as the surrogate directs, or if it is one hundred dollars or less, that it be deposited by the county treasurer in a savings bank or trust company, designated by the surrogate, and that the interest or income thereof be applied to the use of the infant until its majority. (Amended 1882.) For PATMEiq^T of Debts and Funeral Expenses. 103 CHAPTER XIII, MISCELLANEOUS PROVISIONS. Definition of Terms. ShXTioN 2514. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof : 1. The word, " intestate," signifies a person who died with- out leaving a valid will ; bnt where it is used with respect to particular property, it signifies a person who died without effectually disposing of that property by will, whether he left a will or not. 2. The word, " assets," signifies pei-sonal property applicable to the payment of the debts of a decedent. 3. The word, "debts," includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action ; and the word, " creditor," includes every person having such a claim or demand. 4. The word, " will," signifies a last will and testament, and includes all the codicils to a will. 5. The expression, " letters of administration," includes let- ters of temporary administration. 6. The expression, " testamentary trustee," includes every per- son, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator. 7. The word "surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this 104 Disposition of Decedent's Real Estate chapter, inclades every officer or court vested by law with the functions of surrogate. 8. The expression, " judicial settlement," where it is applied to an accoimt, signifies a decree of a Surrogate's Court, whereby the account is made conchisive upon the partie#to the special proceeding, either for all purposes, or for certain purposes specified in tlie statute; and an account thus made conclusive is said to be "judicially settled.'' 9. The expression, "intermediate account," denotes an ac- count filed in the surrogate's office, for the purpose of disclos- ing the acts of the person accounting, and the condition of the estate or fund in his liands, and not made the subject of a ju- dicial settlement. 10. The expression, " upon tlie return of a citation," where it is used in a provision requiring an act to be done in the Sur- rogate's Court, relates to the time and place at which the cita- tion is returnable, or to whicli the hearing is adjourned; in- cludes a supplemental citation, issued to bring in a party who ought to be, but has not been cited ; and implies that, before doing the acts specified, due proof must be made, that all per- sons required to be cited have been duly cited. ' 11. The expression, "person interested," where it is used in connection with an estate or a fund, includes every person en- titled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, iieir, devisee, assignee, grantee, or other- wise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appoint- ment, or may apply for an inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, al- though his interest is disputed ; unless he has been excluded by a judgment, decree, or other final determination, and no ap- peal therefrom is pending. 12. The term, "next of kin," includes all those entitled, un- der the provisions of law relating to the distribution of personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression, " real projierty," includes every estate For Payment of Debts and Funeral Expenses. 105 interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extin- guished by the death of a person seized or possessed thereof, or in anj' manner entitled thereto, and except those which are declared by law to be assets. 14. The word, " inheritance," signifies real property, as de- fined in this subdivision, descended as prescribed by law. The expression, "personal property," signifies every kind of property, which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator. Appointment of Referee. Section 2546. (Amended 1881, 1887, 1889.) In a special proceeding, other than one instituted for probate or revocation of probate of a will, the surrogate may, in his discretion, ap- point a referee to take and report to the surrogat^e, the evidence upon the facts, or upon a specific question of fact; to examine an account rendered; to hear and determine all questioug, arising upon the settlement of such an account, which the surrogate has power to determine ; and to make a report thereon, subject, however, to confirmation or modification by the surrogate. Such a referee has the same power, and is entitled to the same compensation as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action ; and the provis- ions of this act, applicable to a reference by the Supreme Court, apply to a reference, made as prescribed in this section, so far as they can be applied in substance without regard to the form of the proceeding. The surrogate of the county of New York maj', on the written consent of ail the parties appearing in ai probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but with- out authority to pass upon the issues involved therein. Requiring Judicial Settlements. Section 2724. In either of the following cases, the Surro- gate's Court niay, from time to time, compel a judicial settle- ment of the account of an executor or administrator: 1. W here one year has expired, since letters were issued to him 14 106 DisposiTiox OP Dkcjsdent's Ebal Estate. 2. Where letters issued to him liave been revoked, or, for any other reason, his powers have ceased. 3. Where a decree tor the disposition of real property, or of art interest in real property, has been made, as prescribed iii title fifth of this chapter, and the property, or a part thereof, has been disposed of by him, pursuant to the decree. 4. Where he has sold, or otherwise disposed of, any of the decedent's real property, or de visible interest in real property, or the rents, profits, or proceeds thereof, pursuant to a power contained in the decedent's will, where one year has elapsed since letters were issued to him. Section 2725. The Surrogate's Court may compel a judicial settlement of the account of a temporary administrator, at any time. It may also compel a judicial settlement of the account of a freeholder, appointed to dispose of a decedent's real property, or interest in real property, as is prescribed in title fifth of this chapter, in like manner as where the same has been disposed of by the executor or administrator. Restitution to Heirs. Section 2801. Where a decree has been made, for the appli- cation of the proceeds of real' property to the payment of the decedent's debts or funeral expenses, as prescribed in this title, and assets, which should have been applied thereto, are after- ward discovered ; or, for any other reason, money or other personal property of the decedent, which should have been applied thereto, afterward comes to the hands of the executor, administrator, legatee, or next of kin ; the heir, devisee, or other person aggrieved, may maintain an action to procure re- imbursements therefrom. FORMS. no. I. Petitiost. ( Oode of Civil Procedure, section 2753.) Surrogate's Court — County of. , State of Mw Fork: In the matter of the petition of , deceased, for the disposition of the real prop- erty of the said decedent, for the payment of the debts and funeral expenses of said decedent.- To the Surrogate's Court of the County of , State of New York : The petition of of the of in the county of , New York, the {executor or administrator, or a creditor) of the estate of , late of the of , in the county of , New York, deceased, re- spectfully shows : I. That a resident of the of , in the county of , New York, died at the said of in said county of , on or about the day of , 18 , (intestate, or leaving a last will and testament which vias duly admitted to probate on the day of ,18 , of which the follinoing is a copy) : That on or about the day of , 18 , letters 108 Forms. upon the estate of said decedent, were duly issued and granted out of the Surrogate's Court of the said county of , to who thereupon duly qualified and entered upon the discharge of duties as such ; and that such letters are still valid and irj full force. II. That three years have not elapsed since the granting and issuing of said letters. f If the petition is made by a creditor, insert statement of claim substantially as follows : That your petitioner is a creditor of the said , deceased, who died indebted unto your petitioner in the sum of dollars, and interest, the said claim being for (brief statement of the cause of the indebtedness as "'upon a promissory note made by him to your petitioner, dated on July 10, 1881, payable thirty days after date"). Said claim is justly due unto your petitioner; no payments have been made thereon, and there are no offsets against the same to the knowledge of your petitioner, and the same is not secured by judgment or mortgage upon, or expressly charged upon the real estate of the said decedent.] III. That an inventory of the personal property of the said decedent has been made, and such inventory was duly filed in the surrogate's office of the said county of , on the day of , 18 . IV. That in pursuance of an order of the Surrogate's Court of said county of , the said duly caused to be published in a newspaper entitled the , printed and published in the county of , New York, once in each week, for six successive months, agreeably to the statute in such case made and pro- vided, a notice for the creditors of said decedent to present their claims, with the vouchers thereof, to said V. That the amount of personal property of the said dece- dent which has come into the hands of the said is the sum of $ and that the sources whence, and the manner in which said sum has been derived, appear in the account hereto an- nexed, marked Schedule "A," which forms a part of this peti- tion. VI. That said ha expended and paid out in due course of administration of the estate of said deceased, the sum of $ and the particulars of such expenditure and payments ap- pear in the said account hereto annexed, marked Schedule "A," Forms. 109 leaving in the hands of said on tlie day of ,18 , the sum of I . That no greater amount has been or can here- after be realized from the personal property of said decedent, by said than the amount hereinbefore stated to have been so realized by h VII. That said ha proceeded, with reasonable diligence, in converting the personal property of the said decedent into money and applying the same to the payment of the debts and funeral expenses of the said decedent. VIII. That the unpaid debts and claims outstanding against the said decedent and h estate, and which have been allowed by said and the particulars thereof, with the name and resi- dence of each creditor, or person claiming to be a creditor of said decedent, or his estate, so far as the same can be ascertained by the said ; and the amount of unpaid funeral expenses of said decedent, and the name and residence of each person to whom any sum is due by reason thereof, appear in the schedule hereto annexed, marked Schedule " B," which also forms a part of this petition. IX. That the aforesaid debts and claims against the said de- cedent and his estate, hereinbefore and hereinafter mentioned and referred to, are not secured by judgment or mortgage, or expressly charged by will or otherwise upon the decedent's real property or interest in real property — nor are the same a lien or charge upon the real property of said decedent, nor is the real property of the said decedent devised, expressly charged with the payment of the debts, claims and funeral expenses of the said decedent, nor is the real property of the said decedent, subject to a valid power of sale for the payment of such debts and claims. ' That the personal property of the said decedent is insujfficient for the payment of the debts and funeral expenses of said decedent. That the debts, claims and funeral expenses against the said decedent or his estate and which remain to be paid, so far as the same can be ascertained by your petitioner, and as have been admitted by upon due evidence amount to $ , exclusive of interest, as will more fully appear by said Schedule " B." X. That the claims against the said decedent or his estate mentioned in Schedule " C," hereto annexed, and which forms a part of this petition, have been presented to , but have not been admitted by , for the reason that by the books of ac- 110 Forms. count of said decedent, it does not appear that such large sums are due to the parties presenting such claims. XI. Your petitioner further shows that the said decedent died seized and possessed of the real property and interest in real property,hereinafter described, and no other, situated within the State of New York; that the value, in the judgment of your petitioner, of each piece or parcel of real property and interest in real property belonging to the said decedent at the time of his death, and situate within the State of New York, hereinafter described, and whether occupied or not, and, if occupied, the names and places of residence of the occupants of the same, and the condition and situation of the said real property, or interest in real property, as to improvements, and as to whether the same or any part thereof is improved or not, and as to whether or not the same or any part thereof is incumbered, and, if incumbered, the name and residence of the owner of such incumbrance, to- gether with the amount unpaid thereon, appear at the foot or end of the description of each of said pieces or parcels of real property hereinafter described, together with a statement show- ing what interest the said decedent had in said real property. XII. Said real property, of which said decedent died seized, is described as follows, to-wit: [ {Insert description of all the real estate of which the decedent died seized, descriUng each parcel separately.) ******* ***.**** ******* After description of each parcel insert a, b, c, d, e and /. a. That the value of said described parcel, according to the judgment of your petitioner is $ b. That the same is occupied, and the names of the several occupants are as follows: (or, if unoccupied, so state instead of this clause.) c. That the following buildings are situated on said parcel, to- wit : (or if vacant property, so state.) d. That the condition and situation of said described parcel as to improvements is as follows: e. (State incumbrances on each parcel described as follows :) That the said parcel of land is subject to an incumbrance by mortgage, which mortgage was given by to for $ , and FOBMS. Ill recorded in county clerk's office on the day of 18 , and there is now due thereon the sum of $ ; that resid- ing at , county, N. Y., is the owner of such mortgage {or, if the said land is free and clear of incumbrances, so state). f. That the said , the decedent, was the owner in fee of the said described premises {or, if not absolute oiv7ier, state fully what interest decedent had in property described at the time of his death).} XIII. Your petitioner further shows that the names, ages and places of residence of the husband, widow, heirs-at-law and devisees of the said decedent and their respective wives and of every person claiming under them or either of them, and the names and residences of the general guardians of those who are infants are as follows, to-wit: XIV. That no previous application has been made, to the knowledge or belief of your petitioner, for an order and de- cree authorizing and directing the disposition of the real prop- erty of the said decedent or any part thereof, for the payment of the debts and funeral expenses of said decedent. That all of the persons hereinbefore and hereinafter mentioned are of full age and of sound mind, except as hereinbefore stated. Wherefore your petitioner prays that an order and decree may be made, authorizing and directing the disposition of the real property of said decedent, or so much thereof as may be neces- sary to pay the debts and funeral expenses of said decedent, and that the persons hereinbefore and hereinafter mentioned, and all other persons in anywise interested in the estate of the said de- cedent, may be cited to show cause why such order and decree should not be made, and why the real property of the said dece- dent should not be disposed of, mortgaged, leased, or sold for the payment of the debts and funeral expenses of the said , deceased. Dated, , 18 . Petitioner. State of New Yokk, ) County of . ) '^'^' , the petitioner , named in the foregoing petition, being duly sworn, deposes and says, that he ha heard said petition read and know the contents thereof, and that the same is true of h own knowledge except as to the 112 Poems. matters therein stated to be alleged on information and belief, and that as to those matters h believe it to be true. Sworn to before me this ) day of ,18 . [ I The petitioners must sign each of the schedules at the end thereof.] NO. 2. Cebditor's Notice of PEsroEiircY of Action. {Code of Civil Procedure, section 2751.) Supreme Court, County. , as executor of tlie last will and testament of Notice is hereby given, under and in pursuance of the pro- visions of section 3751 of the Code of Civil Procedure of the State of New York, of an action brought by , plaintiff, against , as executor of the will of {or administrator of the estate of) . deceased, late of the of , in county. State of New York, to recover judgment upon the following demand : {state claim briefly, as " upon a promissory note made and executed by decedent," or as the case may be). The following real property owned by the decedent in his life- time and at the time of his death situated in the {city or town) and county, bounded and described as follows: {insert de- scription) is affected by said action, and such real property w^ill be held as security for any judgment obtained in the action. Dated the day of 18 . SAM. H. WANDELL, Plaintiff's Attorney. Forms. 113 NO. 3. Order for Executor or ADiiiifiSTRATOR to Account. {Code of Civil Procedure, section 2753.) At a Surrogate's Court held in and for the county of , at the surrogate's office in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. Id the matter of the petition of , as a creditor of , deceased, for the disposition of the real prop- erty of the said decedent, for the payment of the debts and funeral expenses of said decedent. , claiming to be a creditor of , late of the of , in the county of , deceased, having presented his peti- tion to the Surrogate's Court, duly verified, praying for dispo- sition of the real estate of the said decedent for payment of his debts, and the said petition not enumerating the said debts par- ticularly or stating the same in detail, Now on motion of Sam. H. Wandell, of counsel for said peti- tioner, it is hereby Ordered, that , the executor of the loill of said decedent {or administrator of the estate), shov? cause before said Surro- gate's Court, at the surrogate's office in the of on the day of ,18 , at o'clock in the noon of that day, why he should not be required to render an account of his receipts and disbursements as such executor {or administrator) and to file a statement of any and all of the claims, debts or demands against said decedent presented to and known by him, and to render an account of all personal property of said decedent. Let a copy of this order to show cause be served upon said , executor, personally, on or before the day of 18 . In testimony whereof, the surrogate of the county [l. S.J of has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. 15 114 Forms. NO. 4. OltDEK THAT CITATION ISSUE. {Oode of Civil Procedure, section 2754.) At a Surrogate's Court held in and for the county of , at the surrogate's oflBce, in the of , on the day of A. D., 18 . Present, Hon. , Surrogate. In tlie matter of the petition of , deceased, ■ for the disposition of the real prop- ^ erty of the said decedent, for the pay- ment of the debts and funeral expen- ses of said decedent. J On reading and filing the petition of , the {executor or administrator or a creditor) of the estate of , late of the of in the county of , New York, deceased, dated the day of , 18 , and filed in the surrogate's office of said county of , on the day of , 18 , praying for authority to dispose of, mortgage, lease or sell the real property of the said decedent, for the payment of the debts and funeral expenses of said decedent; And, it appearing to the surrogate, that said petition has been presented within thi'ee years from the time the letters upon the estate of said decedent were granted and issued; And the surrogate being satisfied by the said petition and by due inquiry, by him made, that all the facts specified in section 2754 of the Code of Civil Procedure, have been ascertained, as far as they can be, upon diligent inquiry for that purpose, and are stated in said petition; And, it appearing to the surrogate, in the manner aforesaid, that the debts and funeral expenses of said decedent, cannot be paid without resorting to the real property of said decedent. Now on motion of Sam. H. Wandell, attorney for said peti- tioner : It is Ordered. That a citation issue out of this court, upon said petition, requiring (name interested and necessary parties, and if creditor makes petition include the executors or adminis- Forms. 115 trators as well as all other parties), to appear before the surrogate of the county of , New York, at his oflBce, in the of in said county, on the day of ,18 , at o'clock in the noon of that day, then and there to show cause, if any they have, why the real property of the said decedent should not be disposed of for the payment of ihe debts and funeral expenses of said dece- dent, and why authority should not he given to the said as such as aforesaid, to dispose of, mortgage, lease or sell so much of the real property of the said decedent as shall be neces- sary to pay the debts and funeral expenses of said decedent. And let said ^jitation be also directed generally to all other creditors and persons interested in the estate of said decedent, as well as those named in said petition. In testimony whereof, the surrogate of the county [l. s. ] of has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. NO. 5. Citation. {Code of Civil Procedure, section 2754.) The People of the State of New York, by the grace of God free and independent: To heirs-at-law, next of kin, legatees, devisees, creditors and ocupants of the real estate of , late of the of in the county of , New York, deceased, and to all other creditors and persons in any way interested in the estate of said , decedent. Whereas, the (executor, administrator or a creditor) of the estate of said , deceased, ha applied to our Surrogate's Court of the county of , New York, for the disposition of the prop- erty of said decedent for the payment of the debts and funeral expenses of said decedent; now therefore, you and each of you, are hereby cited and required to appear before , surrogate of the county of , New York, at his office in the of , in said county, on the day of ,18 , at o'clock in the noon of that day, then and there to show cause, if any you have, why the real property of said decedent should not be dis- 116 Forms. posed of, mortgaged, leased or sold for the payment of the debts and funeral expenses of said decedent, and why an order and decree should not be made, authorizing and directing the disposi- tion of the real property of said decedent, or so much thereof as may be necessary for the payment of the debts and funeral expen- ses of said decedent; and if any of the aforesaid persons, so inter- ested in the estate of said decedent, and hereby cited, are infants under the age of twenty-one years, they will please take notice that they are required to appear by their general guardian, if they have one, or if they have none, that they appear and apply for the appointment of a special guardian, or in the event of their neglect or, failure to do so, a special guardian will be appointed by the surrogate to represent and act for them in the proceeding. Given under the hand and seal of office of said surro- gate, at , in the county of , this day [l. s.J of , in the year of our Lord one thousand eight hundred and , Surrogate. Admission of Service of Citation. I, the subscriber, one of the within-named persons, and one of the persons interested in the estate of the deceased person hereinbefore mentioned, do hereby admit due, legal and personal service on me of the within citation, at and as of the date of said citation. NO. 6. Order for Trial by Jury. ( Code of Civil Procedure, section 2547. ) At a.- Surrogate's Court held in and for the county of , at the surrogate's office, in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of tlie petition of , deceased, for the disposition of the real prop- erty of the said decedent, for the payment of the debts and funeral expenses of said decedent. V John Doe, having presented to the surrogate, upon the retura Forms. 117 of a citation duly issued upon petition to the creditors, heirs-at- law, and administrator of the estate of the above-named , deceased, a claim against the said deceased, alleged to have been owing from said decedent in his life-time, arising upon a liability for [insert brief statement of claim, for instance as follows : " upon a certain promissory note in writing claimed to have been made by said decedent during his life-time, of which the following is a copy : "). And Eichard Roe, the administrator of the said decedent, hav- ing doubted the justice of said claim and having disputed the same, and alleging that said decedent did not incur said liability or enter into said contract or engagement during his life-time, as claimed by said John Doe, and the surrogate having decided that the issue should be be tried at a Circuit Court to be held in and for the county of , (or in the County Court of county) ; It is Hereby Ordered, that such controverted questions of fact, to-wit : (here insert the issue to be tried by a jury, as, " whether said decedent during his life-time made said promis- sory note, and whether he delivered such promissoi-y note for value in his life-time ") be tried by a jury at a Circuit Coui-t, or at the County Court), to be held as aforesaid. In testimony whereof, the surrogate of the county of [l. s.] has here onto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. NO. 7. Order for Appraisement of Eeal Estate. {Code of Civil Procedure, section 2760.) At a Surrogate's Court, held in the county of . at the surro- gate's office in the of , on the day of , A. D., 188 . Present, Hon. , Surrogate. In the matter of the petition of deceased, for the disposition of the real prop- ^ erty of said decedent, for the pay- ment of the debts and funeral expen- ses of said decedent. Application having heretofore been made for the disposition 118 Forms. of the real estate of the above-named decedent for the payment of his debts and funeral expenses, and it having been made to appear that some disposition thereof shall be made, now there- fore, to the end that it may be ascertained, as provided by section 2760 of the Code of Civil Procedure, whether sufiBcient money can be raised, advantageously to the persons interested in the real property of which the said died seized, by mortgage or lease of said real property or a part thereof. It is Heeby Oedeked, that the following persons be appointed, and the said surrogate hereby appoints of , N. Y. , of , N. Y., and of , as three competent, disinter- ested persons to examine and appraise each parcel of such prop- erty and its rental value at its just and fair market value, and said persons so appointed are hereby required forthwith so to appraise the same and make report thereof, signed and verified by at least two of them, describing each parcel and stating its value and rental value at its just and fair market value, and file the same in the said surrogate's oflBce. In testimony whereof, the surrogate of the county of [L. S.J has hereunto set hishand and aflQxed his seal of oflSce, at the of , in said county this of , 18 . , Surrogate. NO. 8. APPOISTTMElSrT OE APPEAISEES. ( Code of Civil Procedure, sectioii 3760.) County, ss.: To By virtue of the power and authority given to me, I do hereby appoint you appraisers to examine and appraise each parcel of the real property of late of the of , in the county of , New York, deceased, and its rental value at its just and fair market value. In testimony whereof, the surrogate of the county of [l. s.] has hereunto set his hand and affixed his seal of office, at the of , in said county this 18 . , Surrogate. Forms. 119 NO. 9. Appraiser's Oath. ( Code of Civil Procedure, section 2760. ) County, ss. : I, an appraiser duly appointed by the surro- gate of the county of , do swear and declare, that I will truly, honestly, and impartially examine and appraise each parcel of the real property of , deceased, and its rental value, at its just and fair market value to the best of my knowledge and ability. (Appraiser sign here.) Sworn to before me this day ) of , 18 . [ (Justice or Notary sign here.) Note. — Each appraiser must take and subscribe this oath. NO. lO. Appraisal of Eeal Estate. (Code of Civil Procedure, section 3760.) A true and perfect appraisal of the real property of , de- ceased, and of its rental value, at its just and fair market value, made by , the persons appointed by the surrogate of the county of , to make such appraisal. (Here describe each parcel of real property and place a value to each parcel, and rental value.) Dated , 18 Appraisers. i Note. — Each of the appraisers must sign here. Affidavit of Appraisal. ( Code of Civil Procedure, section . ) State of New York, ) . County. j , one of the appraisers of the real property of , deceased, being duly sworn, deposes and says that he has ex- 130 Forms. amined, and truly, honestly and impartially appraised, to the best of his ability, each parcel of the real property of the said deceased, as hereinbefore set forth, and its rental value, at its just and fair market value, and that the foregoing appraisal is in all respects correct and true. Sworn to before me this day ) {Appraiser sign here.) of ,18 . i Justice or Notary sign here. Note. — Each appraiser must subscribe and rerify such affidavit of appraisal. NO. 11. Decree eor Sale. {Code of Civil Procedure, section 2765.) At a Surrogate's Court, held in and for the county of , at the surrogate's office, in the of , on the day of , A. D. IS . Present, Hon. , Surrogate. In the matter of the petition of , deceased, ■ for authority to dispose of the real property of said decedent for the pay- ment of the debts and funeral expen- ses of said decedent. of , late of the of , in the county of , New- York, deceased, having heretofore and within three years after the issuing of letters upon the estate of said deceased, duly presented to the Surrogate's Court of the county of , New York, h petition duly verified, and bearing date the day of , 18 , praying for a decree directing a disposition of the said decedent's real property, or interest in real property, specified in section 2749 of the Code of Civil Procedure, or so much thereof as is necessary for the payment of h debts and funeral expenses, by the mortgage, lease or sale, at public or private sale thereof; and for the necessary citation to be issued to the proper parties, and the surrogate being satisfied, after due FOEMS. 121 examination, that a proper case has been made, and that all the facts specified in section 2753 of the Code of Civil Procedure have been ascertained as far as they can be upon diligent inquiry; and it appearing to the surrogate that the debts and funeral ex- penses of the said decedent cannot be paid without resorting to the real property, or interest in real property, of said decedent described in said petition; and a citation, pursuant to the prayer of said petition, having been duly issued out of this court to {here insert names of persons cited), named in said petition, and to all other necessary parties, as prescribed in title fifth of chap- ter eighteenth of the Code of Civil Procedure, citing them and each of them to appear before the surrogate of the county of , at his oflBce in the of , in said county, on the day of , 18 , at ten o'clock in the forenoon of that day, then and there to show cause why such a decree should not be made; and said citation having been returned to the surrogate of said county, with proof of the due and legal service thereof upon all the aforesaid parties to whom the same was directed (appearance of parties and special guardian, if any). And the said matter having been regularly called in open court by the said surrogate, and the proper proceedings in due form of law having been thereupon had, and the said surrogate having thereupon heard the allegations and proof of the parties; Now, therefore, after the due examination of said matter by said surrogate, the said surrogate finds and adjudges that the following matters have been sufficiently and satisfactorily proven and established: I. That the said petitioner has fully complied with the requi- site provisions of the statutes concerning the disposition of a decedent's real property for the payment of debts and funeral expenses, and that the i^roceedings herein have been in con- formity to title five of chapter eighteen of the Code of Civil Procedure. II. That the debts, for the payment of which this decree is made, are the debts of the decedent, or are just and reasonable charges for h funeral expenses, and are justly due and owing, and that the following claims, for the purpose of paying which this order and decree is made, are justly due and are valid and subsisting debts and claims against said decedent's real property and estate, to- wit: 16 123 Forms, Names of creditors. When due. Items. Totals. III. That the claims above allowed amount in the aggregate, exclusive of interest, to $ . That none of said debts are secured by any Judgment or mortgage, nor are the same expressly charged by said decedent's will upon the said decedent's real property, or upon any interest in real property. IV. That the property hereinafter described was not effectually devised, or expressly cjiarged with the payment of the debts or funeral expenses of said decedent, and is not subject to any valid power of sale for the payment thereof. V. That the said , (executor or administrator) of the estate of said decedent ha proceeded with reasonable diligence in converting the personal property of said decedent into money and applying the same to the payment of debts and funeVal expenses of said decedent, and that the personal property of said decedent is insufficient for the payment of the debts and funeral expenses of said decedent as established by this decree. And the surrogate having thereupon duly inquired whether suflficient money can be raised advantageously to the persons interested in the real property of said decedent, by a mortgage or lease of the real property of which the said decedent died seized, or a part thereof, and to that end having duly appointed three competent, disinterested persons, namely : (insert names of appraisers of real estate) to examine and appraise each parcel of such real property, and its rental value at its just and fair market value ; and they, the said (insert names of appraisers) having thereupon duly appraised the same, made a report thereof, signed and verified by at least two of them, describing each parcel and stating its value and rental value and filed the same in the surrogate's oflBce; and it appearing to the surrogate upon the inquiry made as aforesaid, that sufficient money* cannot be raised advantageously to the persons interested in said real prop- erty or interest in real property described in said petition and hereinafter described, by mortgage or lease thereof; Forms. 133 Now, on motion of Sam. H. Wandell, attorney for the said it is ordered, adjudged and decreed, and the said surrogate doth order, adjudge and decree: I. That the personal property of said decedent is insufficient for the payment of the debts and funeral expenses of said dece. dent. II. That the aforesaid claims and demands of the persons hereinbefore named in the amounts hereinbefore respectively stated are valid and subsisting debts, claims and demands against said decedent's estate. It is hereby ordered, directed and decreed, and the said surro- gate doth order, direct and decree that* the real property or interest in real property hereinafter described, for the purpose of paying the debts and funeral expenses of said decedent, or so much thereof as is necessary in order to pay the said debts and funeral expenses, be sold, at public sale or at a private sale at a price not less than the value thereof, as appraised pursuant to the provisions of section 2760 of the Code of Civil Procedure by the said upon h giving the bond prescribed by law in the penalty of dollars, with two or more sureties, or in case of h failure to give such bond within days from the date of this decree, by a freeholder to be appointed by the surrogate of the county of , as prescribed by law. It is hereby directed that if said real property shall be sold at public sale, the person making said sale, cause each distinct parcel to be separately exposed for sale, and that the sale of the several parcels be made in ' the order in which said parcels are hereinafter described. {Describe the several parcels with common certainty as in the petition.) It is further ordered that in such sale the said {executor or administrator) be authorized to give such length of credit, not exceeding three years, for not more than three-fourths of the purchase-money as shall seem best calculated to procure the highest price, and shall secure the moneys for which credit shall be so given by a bond of the purchaser and a mortgage upon the premises sold. And it is further ordered that before any deed or deeds of the premises sold shall be executed, the said executor make return of the proceedings had in this decree to the said surrogate, to 134 FoKMS. the end that the said surrogate may examine said proceedings and the fairness and legality of the said sale. In testimony whereof, the surrogate of the county of [l. S.J has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. 3fO. 12. Deokee for Moktg.\gb. {Code of Civil Procedure, section :i765.) Continue as in the preceding form to the asterisk, then insert following: " Can be raised advantageously to the interests of the estate by a mortgage on the land." Also after second asterisk insert: " That said executor {or administrator), execute in due form for record, a mortgage upon the following described real prop- erty, which mortgage shall be made for the sum of dollars, for the term of and payable within years, from the date thereof, with semi-annual interest, and be secured by an assign- ment of the policies of insurance against fire procured upon the buildings on said premises {or add other special directions)." {Insert description of property.) In testimony, etc. N. B. — This form can be varied and adapted in connection with the preceding form to a case where a lease of the decedent's real estate is ordered. ISO. 13, Bond on Disposal of Real Peopertt, {Code of Civil Procedure, section 2766.) Know all men by these presents. That we as sureties, are held and firmly bound, unto the people of the State of New York, in the sum of (twice the value of the property to be dis- posed of) dollars, lawful money of the United States of America, to be ^aid to the said people: to which payment well FOKMS. 125 and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord one thousand eight hundred and Whereas, the above bounden late of the of in the county of , New York, deceased, has lately applied to the Surrogate's Court of the county of , New York, for author- ity to dispose, by mortgage, lease or sale, of so much of the real property of the said , deceased, as shall be necessary to pay h debts and funeral expenses; and whereas such proceedings in due form of law have beea thereupon had, that the surrogate of said county has decreed a sale {lease or mortgage) of so much of the real property whereof the said decedent died seized, as shall be necessary to pay the debts and funeral expenses of said decedent. Now, the condition of this obligation is such, that if the said shall faithfully perform the duties imposed upon h by said decree, and shall pay into the Surrogate's Court of said county of within twenty days after the receipt thereof by h all money arising from any such sale [lease or mortgage), and shall deliver to the surrogate of said county of , within the same time, all the securities taken thereupon, and shall account for all money received by h , whenever h is required to do so by a court of competent jurisdiction; then this obligation to be void; otherwise to remain in full force and virtue, In presence of (Signed) [seal.] [seal.] [seal. J [seal.] • Justification. State ov New York [ ^^. county. ) , the sureties, named in the within bond, being duly sworn, each for himself doth depose and say, that he is a resident of, and a freeholder within the State of New York, and is worth in good property the sum of dol- lars over and above all debts he owes, or liabilities incurred by lae FoBMs. him, exclusive of such property as is exempt by law from levy and sale on execution. Severally sworn before me ) this day of 18 . j Acknowledgment. State of New York ) ^^ . county. ) . On this day of , 18 , before me, the subscriber, person- ally appeared who severally acknowledged that they execu- ted the within bond, and I certify that I know the persons who made the said acknowledgment to be the individuals described in and who executed the said instrument. NO. 14. Order Appointing a Freeholder. {Code of Civil Procedure, section 2767.) At a Surrogate's Court held in and for the county of , at the surrogate's ofiBce, in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of the petition of , deeeased, for the disposition of the real property of said decedent, for the payment of the debts and funeral expenses of said decedent. The surrogabe having heretofore duly made and entered an order in the above-entitled proceeding,' directing all persons in- terested in the estate of the above-named decedent to appear at a time and place in said order fixed and specified, and then and there to show cause, if any, why the real estate of the above named , deceased, should not be sold or disposed of for the payment of his debts and funeral expenses, which said order bears date the day of , 18 , and the surrogate having duly heard the proofs, allegations and contentions of the parties Forms. 127 hereto, aud having determined that a sale of said real estate was necessary for the purposes hereinbefore mentioned, and having ordered said sale to be made, and having given the proper notice to , the administrator of the estate {or executor of the will) of said , deceased, aj^plying for such disposition of the dece- dent's real estate, and having directed and requested said ad- minidrator [or executor) to execute and file the bond required by law in this court, and a reasonable time having elapsed since such order, notice and direction vi^as made as aforesaid, and the said , the said administrator (or executor), having neglected and failed to make, execute and file such bond as so required, It is Heeebt Oedeked, that , of the of , county, !N". Y., a disinterested freeholder, nominated by a majority of the creditors of the said , deceased, vrhose debts have been heretofore duly established, be and he is hereby appointed in the place and stead of said , administrator {or executor), to make sale of the said real estate, upon his executing and filing with the surrogate a bond in the penalty of dollars, with the condition required by the statute in such case made and provided. In testimony whereof, the surrogate of the county [l. S.] of has hereunto set his hand and affixed his seal of ofiBce the day and year first aforesaid. , Surrogate. NO. 15. Oedbe Dieecting Execution of Decree. ( Code of Civil Procedure, section 3768.) At a Surrogate's Court held in and for the county of , at the surrogate's office, in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of the petition of deceased, for the disposition of the real property of the said decedent, for the payment of the debts and funeral expenses of said decedent. An order and decree bearing date the day of , 18 , having been made in the above-entitled matter directing a sale 128 FoKMS. of the real property of , deceased, therein mentioned and described, for the payment of h debts and funeral expenses; and the of the estate of said decedent, having executed the bond referred to in said order as prescribed by law in the penalty of $ , with two or more sureties ; and the requisite justification of sureties, which bond has been duly ap- proved by said surrogate and filed in the surrogate's oiBce of said county ; Now therefore, on motion of Sam. H. Wandell, attorney for said , it is ordered, adjudged and decreed that said proceed to execute the said order, and decree with respect to all the real property therein mentioned and described, and sell the real property therein directed to be sold for the payment of the debts and funeral expenses of said decedent. In testimony whereof, the surrogate of the county [l. S.J of has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. ISO. 16. Notice of Salts. {Code of Civil Procedure, section 2773.) In pursuance of an order of the Surrogate's Court of the county of , duly made and entered on the day of , 18 , the undersigned, the executor of the last will and testa- ment {or the administrator of the estate) of , late of the of , deceased, at the front door of the court house in the of , county, at o'clock in noon of that day, the following described real estate to- wit: (insert description of the several ,parcels to be sold, following description in order of sale and petition, and describing the building upon each parcel. ) Dated the day of 18 . {Executor or Administrator.) POBMS. 129 NO. 17. Eeport of Sale. [Code of Civil Procedure, section 3775.) SURROGATE'S COURT, COUNTY OF In the matter of the disposition of the real property of for the payment of the debts and fu- neral expenses of said decedent. To the Surrogate's Court of the county of , New York : the of the of , late of the of in the county of , deceased, do hereby make a report and return of h proceedings under the order and decree of sale made herein and bearing date the day of , 18 , and which was directed to be executed by an order and decree bearing date the day of ,18 , as follows, to-wit: That h caused notice that the real property of said decedent described in said order and decree and hereinafter described would be sold at public auction to the highest bidder at the in the of , in the county of , New York, on the day of ,18 , at ten o'clock in the forenoon of that day to be conspicuously fastened up, at least forty-two days before the day appointed for the said sale, in three public places in the of in the county of in which said the real property directed to be sold is situated; and that he also caused notice that said real property would be sold ab public auction at the time and place aforesaid to be conspicuously fastened up, at least forty-two days before the day appointed for the said sale, in three public places in the of in the said county of , in which said the where said property is advertised to be sold is situated; and the same notice to be published once in each of the six weeks imme- diately preceding the said sale in the newspaper entitled the printed and published in the of in said county of , a copy of which said notice, with the proof of such posting and publication thereof, is hereunto annexed. That on the day of , 18 , at ten o'clock in the fore- noon of that day at the in the of , in the said county of , the time and place mentioned in the said notice of sale, he sold at public auction to the highest bidder, the real 16 130 Forms. property hereinafter described, and described in said order and decree of sale, and which said real property so sold is therein described as follows, to-wit: (Here insert description of each piece of real estate sold, to whom sold, and the price paid. ) That said sale was, in all respects, legally made and fairly conducted, and that the price or prices, for which said real property was sold, was the best possible price that could be obtained for the same, and that in the opinion of said a greater price could not be obtained for said real property,, so sold, as aforesaid, if a resale of said real property was ordered. In consideration of the premises the said ask and pray that an order and decree may be immediately made confirming said sale. Dated , 18 . State oe New York, County of , Verification, i ss.: the persons named in the foregoing report and return, being duly sworn, depose and say that he ha heard the said report and return read and know the contents thereof, and that the same is true of h own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believe it to be true Sworn before me, this ) day of 18 . S NO. 18. Notice of Motion for CojifFiRMAxiON-. {Code of Civil Procedure, section 2775.) SURROGATE'S COURT, COUNTY. In tlie matter of the petition of , deceased, for tlie disposition of the real prop- , erty of the said decedent, for the payment of the debts and funeral expenses of said decedent. Sir: Please take notice, that on the day of , A. D., 18 , at o'clock in the noon of that day, or as soon thereafter as Forms. 131 counsel can be heard, a motion will be made before the Honor- able , surrogate of this county, at his office in the of , for an order confirming the sale of the real estate in this matter. Dated day of , 18 . Yours, etc., , Attorney for Executor. Office and post-office address, , N. Y. To , Esq., Special Guardian of Minora, and A. B. C. D. [Naming persons entitled to notices.) NO. 19. Oedek Vacating Sale. [Code of Oivil Procedure, section 2775.) At a Surrogate's Court, held in and for the county of , at the surrogate'? office in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of the petition of , deceased, for the disposition of the real prop- erty of the said decedent, for the payment of the debts and funeral expenses of said decedent. , the executor of the will [or administrator of the estate) of , the aboye-named decedent, having duly made and filed a report of the sale of the real estate of said decedent, under a decree of this court for that purpose, duly made and entered on the day of , 18 , and having applied for con- firmation of said sale, and it appearing from inquiry by the surrogate that the sale thereof mentioned in said report unto , the purchaser at said sale, for the purchase price of $ , was less than the value thereof at the time of said sale, and that a sum exceeding that amount by at least ten per centum, exclu- sive of the expenses of anew sale, may be obtained upon a re-sale thereof {or it appearing to the surrogate that such proceedings 132 Forms. loere unfair in that, etc., as the case may be; see section 2775), It is Herbby Ordered, that the said sale be vacated, and that the premises aforesaid be re-sold, pursuant to the statute in such case made and provided. In testimony whereof, the surrogate of the county of [l. S.J has hereunto set his hand and aflBxed his seal of office the day and year first aforesaid. , Surrogate. NO. 20. Order Confirming Sale. ( Code of Civil Procedure, section 3776. ) At a Surrogate's Court, held in and for the county of , at the surrogate's office in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of tlie petition of for the disposition of the real property of the said decedent, for the payment or the debts and funeral expenses of said decedent. An order having been duly made by the surrogate of the county of , on the day of , A. D., 18 , authorizing (naming executor or administrator) the of the of , late of of , in said county, deceased, to Sell the real property whereof the said deceased died seized, or h interest in th^ real property mentioned and described in the said order, to enable to pay the debts and funeral expenses therein mentioned of the said deceased, and the said (executor or administrator) having this day made return of proceedings upon the said order, by which said return it appears that under the said order said (executor or administrator) after having posted and published due notice of the time and place of the holding said sale accord- ing to law, did, on the day of , A. D., 18 , at o'clock in the noon, the time mentioned in the said notice, and be- tween the hour of nine in the morning and the sebting of the FoKMS. 133 sun the same day at , the place mentioned in the said notice, sell at public vendue the whole of the premises mentioned and described in the said order, as follows: (insert description of premises) for the sum of , that being the highest sum bid for the same, and being the highest bidder therefor. And the said {executor or administrator) having this day appeared before the surrogate in own proper person, and by Sam. H. Wandell, Esq., his counsel, and having moved for an order confirming the said sale, and the said surrogate having examined the proceedings upon the aforesaid order of sale, and having duly examined the said touching the same; and it appearing to the surrogate that the said sale was legally made and fairly conducted, and that the sum bid for lot and parcel of real property so sold not disi)roportionate to value, and that a greater sum cannot be obtained for said premises than was bid at said sale. It is ordered and decreed, and the surrogate, pursuant to the provisions of the statutes concerning the powers and duties of executors and administrators in relation to the sale and disposi- tion of the real property of their testator or intestate, and the amendments thereof, doth order and decree that the said sale of the said real preperty so as aforesaid made by the said, {executor or administrator-) be, and the same is hereby confirmed . And the said surrogate, pursuant to the provisions of the stat- utes aforesaid, doth further order and direct that upon the com- pliance on the part of the purchaser or purchasers with the terms of the said sale to be performed, said {executor or administrator) make and execute a proper conveyance of the said lot and parcel so sold by as aforesaid, to the purchaser or purchasers thereof at said sale. In testimony whereof, the surrogate of the county [l. S.] of has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. NO. 21. Deed Upon Sale of Decedent's Keal Estate. {Code of Civil Procedure, section 2776.) This Indentctke, made the day of , in the year of out Lord one thousand eight hundred and , between , as ex- 134 POKMS. ecutor of the last will and testameDt of , late of the of , county. New York, deceased (or administrator of the estate, etc., as the case may he), of the first part, and of , N. Y., purchaser at executor's sale of the premises hereinafter described, of the second part, witnesseth : That whereas, at a Surrogate's Court, held in and for the county of , at the surrogate's office in the of , county, N. Y., on the day of , 18 , a certain decretal order was duly made and entered for the sale of the real estate of the said , deceased, for the purpose of paying the debts and funeral expenses of said deceased person, which decree was as follows, to- wit: {Set forth decree for sale, or substance thereof.) A^TD WHEREAS, at a Surrogate's Court, held in and for the county aforesaid, at the place aforesaid, on the day of , 18 , an order was duly made and entered for the execution of said decree for sale, which order for the execution thereof is as follows, to- wit: (Set forth order for execution of decree, or substance thereof.) And whereas, under and in pursuance to said decree and order, the said party of the first part did, on the day of , 18 , sell, at public vendue, the whole of the premises therein referred to, to the said , the purchaser at said sale, party of the second part, for the sum of dollars, and did thereupon make report and return of such proceedings to the Surrogate's Court of said county, and thereupon, and upon due notice of such application, the said surrogate did make an order confirming said sale, which order was duly made and entered on the day of , 18 , and was in the following form, to-wit: (Insert order confirming sale, or the substance thereof. ) And whereas the party of the second part, the purchaser at said sale, has in all things complied with the terms of said sale, on his part to be performed. Now. therefore, this indenture witnesseth that the said party of the first part, as executor as aforesaid [or as administrator), for and in consideration of the sum of dollars, good and law- ful money of the United States, to him in hand paid at or before the ensealing and delivery of these presents, by the party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained and sold, and by these presents doth grant, bargain, sell and convey unto said party of the second part, his Forms. 135 heirs and assigns forever, the lands and tenements in said orders and decrees mentioned, and described to-wit: {insert description of property as described in order for sale), together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and the reversions and re- mainders, rents, issues and profits thereof. And all the estate, right, title, interest, property possession, claim and demand whatsoever, which the said decedent had in h life-time, and at the time of h decease, and which the said part of the first part ha, by virtue of the said orders and decrees, or otherwise, of, in and to the above-described premises, and every part and parcel thereof, with the appurtenances, to have and to hold for- ever. And the said part of the first part for and for heirs, executors and administrators, do covenant, promise and agree to and with the said part of the second part, heirs and assigns, that ha not made, done, committed, executed or suffered any act or acts, thing or things, whatsoever, whereby, or by means whereof, the above mentioned and de- scribed premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or en- cumbered in any manner or way whatsoever. In witness whereof, the said part of the first part |l. §.J ha hereunto set hand and seal the day and year first above written. Sealed and delivered in | the presence of j {Executor or Administrator.) State of New York, ) . County, j On this day of , 18 , before me personally appeared , executor of the last will and testament of , deceased, to me personally known to be the person described in and who executed the foregoing conveyance, and duly acknowledged that he executed the same as such executor, for the uses and purposes therein mentioned. , Notary Public, County, K Y. Note. — This form may be varied to conform to a case where a lease or mortgage of the decedent's real estate has been ordered. 136 Forms. sro. 22. OiiDEE FOE Distribution of Proceeds. {Code of Civil Procedure, section 3787.) At a Surrogate's Court, held in and for the county of , at the surrogate's office in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of the real estate, of late of deceased. The ayails of the real estate of the said deceased, sold {mort - gaged or leased as the case may he) under the order heretofore made in this matter, having been brought into court. Is IS Ordered, that all persons having any claims or demands against the estate of the said deceased, which have not already been allovred, exhibit and prove the same before the surrogate of the county of , at his office , in the of in said county, on the day of , 18 , at o'clock in the noon, and it is further ordered, that distribution be made among the creditors of the said deceased on the day and at the place aforesaid, or as soon thereafter as the said claims can be ex- amined, and that a notice of such distribution be published six weeks successively in a newspaper published in the of , N. Y. It is Further Ordered, that notice be served personally, at least days before said day, upon , widow of said deceased, to elect before the surrogate upon that day whether she will accept a proper siim in gross in satisfaction of her dower interest in and to the real estate of said decedent. In testimony whereof the surrogate of the county of [l. s.] has hereunto set his hand and affixed his seal of office the day and year first aforesaid. , Surrogate. Forms. 137 NO. 23, Notice of Distkibutiox. {Code of Civil Procedure, section 3787.) In the matter of the real estate of , late of the of , deceased. Surrogate's Office, ) ' >■ ss.: County, To all persons interested in the estate of , deceased, late of the in said county : Notice is hereby given pursuant to section 3787 of the Code of Civil Procedure, that under and by virtue of an order duly made and entered in the Sun-ogate's Court, of county, on the day of , 18 , the surrogate of said county will proceed to make distribution of the proceeds of the real estate of said , deceased, heretofore duly sold {leased or mortgaged as the case may ie) for payment of his debts and personal expenses, at the office of said surrogate in the of , in said county, on the day of , 18 , at o'clock in the noon of that dayi or as soon thereafter as claims can be examined, and notice is hereby given to any and all persons having claims or demands against the estate of the said , deceased, which have not heretofore been allowed, to exhibit and prove the same before said surrogate upon that day, at the time and place aforesaid, or lose the benefit of the proceeds arising from the disposal of said real estate. In testimony whereof the surrogate of county has [t. s.] hereunto set his hand and affixed his seal of office the day of , A. D., 18 . , Surrogate. 138 Forms. NO. 34. Notice to Widow. {Code of Civil Procedure, section 3793.) In the matter of the distribution of the proceeds of the real estate of deceased. To , widow of above-named decedent : You are hereby aotified and required to elect whether you will accept such sum in gross as shall be deemed upon the principles of law, applicable to annuities, a reasonable satisfaction of your claim for dower in the lauds of the above-named decedent in lieu of your dower, and to so elect before the surrogate of the county of , at his office iu the cif , in said county, on the day of , A. D., 18 , at which time the proceeds arising from the surrogate's disposition of the real estate of said decedent will be distributed. Dated , 18 . Executor of the last luill and testament of , deceased. NO. 25. Cos'SBN'T OF Widow to Accept Gboss Sum. {Code of Civil Procedure, section 3793.) Sdkrogate's Court, County. In the matter of the real estate of Whereas, certain lands and tenements of the above-named , late of the of in the county of , N. Y., deceased, in which, I, , of of in the county of , N. Y., as the widow of the said decedent, am entitled to my dower inter- Forms. 139 est, have been sold by virtue of a decree of the surrogate of the county of , duly made and entered on the day of , 18 , and which said lands and tenements are bounded and described as follows : {insert description as set forth in the order of sale). Akd whekbas, the proceeds arising from said sale have been duly paid into the Surrogate's Court for distribution, and the said surrogate has given the proper and legal notice that the same will be distributed on the day of , 18 , at o'clock in the noon of that day. Now, THEREEOEE, kuow all men by these presents, that I, , aforesaid, the widow of the said , deceased, do by these presents consent to accept in lieu of my dower in the lands and tenements, aforesaid, such sum in gross as shall be deemed, upon the principles of law applicable to annuities, a reasonable sum in satisfaction of my said dower. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . (Signed.) [l. s.] (Add acknowledgment the same as for a deed.) NO. 26. SUPPLBMEIfTARY DECREE OST DISTRIBUTION. {Oode of Civil Procedure, sections 3791-3793.) At a Surrogate's Court, held in and for the county of , at the surrogate's office in the of , on the day of , A. D., 18 . Present, Hon. , Surrogate. In the matter of the distribution of the proceeds of the real estate of , deceased. The real estate of the above-named , deceased, having been heretofore disposed of for the payment of debts and funeral expenses by a sale thereof (mortgage or lease as the case may he), under and pursuant to a decree of the Surrogate's Court, duly 140 FOKMS. made upon the filing of a petition for that purpose, and due citation of all interested persons, and the proceeds of said real estate, arising from such disposal thereof, having been hereto- fore paid into that court to the amount of dollars; and the surrogate of our said county having caused a notice to be pub- lished for six successive weeks that distribution of such proceeds would be at this time and place made according to law, and notifying all persons interested in said estates whose claims had not been heretofore allowed to present and prove their claims or lose the benefit of the proceeds of said real estate. And upon reading and filing due proof of the due publication of said notice, and after divers creditors of said decedent have attended pursuant to said notice and established their claims. ' And the surrogate having caused a notice to be duly given to , the widow of the said , deceased, requiring her to elect at this time whether she would accept a sum in gross in lieu of her dower interest in said real estate, and said , the widow of the said decedent, having presented to the surrogate an in- strument in writing, under seal, duly signed, executed and acknowledged by her, in the manner 'required as for a deed to be in this county recorded, whereby she does consent to accept in lieu of her dower in and to the lands and tenements of said decedent a sum, to be ascertained by the surrogate, equal to the value of her right of dower in the gross proceeds, according to the principles applicable to life annuities. And , the executor of the last will and testament of said , deceased (or administrator of the estate), having appeared in person and iJy , Esq. , his counsel, and having filed his claim for expenses paid by him and for compensation in making such sale, which claim was duly verified, and was allowed by said surrogate, I therefore ordered, adjudged and decreed that out of the pro- ceeds of the disposal of said decedent's real estate aforesaid, here- tofore paid into court, as aforesaid, there be paid by the county treasurer of county to said , the widow of the said dece- dent, in lieu of her dower in the lands and tenements of said decedent, the sum of dollars, that being the sum heretofore ascertained by the surrogate equal to her dower in said gross proceeds, according to principles applicable to life annuities; also that there be paid to , said executor {or administrator). Forms. 141 for his expenses and compensation, the sum of dollars, allowed him by the surrogate as aforesaid, and that there be paid to , Esq., his attorney and counsel, the sum of dol- lars, hereby allowed him for services herein. {See § 3793 of the Code of Givil Procedure. ) It is further ordered, adjudged and decreed that the remainder of said proceeds, amounting to dollars and cents, be dis- tributed pro rata among the creditors of said deceased who proved their claims as set forth in the schedule hereunto annexed, marked "A," and made a part thereof, which shows the amount of the claim by each creditor as proved, and the sum payable to each. In testimony whereof the surrogate of the county of [l.s.] has hereunto set his hand, and affixed his seal of office the day and year first aforesaid. , Surrogate. SCHEDULE " A." Referred to in and Forming Part of Foregoing Decree. Amount paid into court $ There shall be paid to , widow $ There shall be paid to , executor There shall be paid to , attorney Amounting to $ The remainder, to-wit: $ , shall be distributed to the creditors who have established their claims herein as follows: Note — Compare this form carefully vrith and adapt to section 2793 of the Code of Civil Procedure, according to the circumstances of each case. ^ .^ ADDENDA. The following case, recently decided, has not been oflBciaUy reported; as seyeral of the points decided have never been passed upon before, it is deemed essential to insert the opinion in full. In the matter of the application to mortgage, lease or sell the real estate of David Merchant, deceased, for the payment of debts. (Supreme Court, General Term, Fourth Department, July, 1889.) Jurisdiction to Determine Disputed Claim : — The fact that a claim was rejected by the administratrix, who ofEei'ed to refer the same, does not deprive the surrogate of jurisdiction to try the same in a special proceeding instituted for disposal of the decedent's real estate for payment of debts and funeral expenses. Parent and Child — Services Performed after Death : — A son who performs labor for his father must show, in order to estab- lish his right to recover for the same, either an express promise that his services should be paid for or that such was the expec- tation on both sides, but in such case the contract, not being for a definite time, cannot be extended beyond the death of the pa- rent so as to enable the Surrogate's Court to order a sale of the decedent's real estate to pay for services performed after the pa- rent's death. Interest on Unliquidated Demand: — Where the claim was for services performed during a number of years, as a farm laborer, and the petition claimed interest only from the date of the last item, it is improper for the surrogate to allow interest from the close of each year's labor, it being an unliquidated demand for services. Personal Transaction with Decedent: — Under section 829 of the Code of Civil Procedure it is not improper to ask the ques- tions : " Did you perform work on these premises ? " and " State what you did there aside from personal transactions with Mr. Merchant." The simple performance of work by a son for his father would not authorize an inference of any implied promise to pay therefor. Creditor's Petition — Allegations on Information atid Belief — Inquiry : — Allegations in a creditor's petition for disposition of 144 Addenda. a decedent's real estate to pay debts must necessarily be upon information and belief , and if the petitioning creditor has reliable information there is no occasion for an inquiry by the surrogate. The truth of such allegations can be investigated on the trial. Such petition by a creditor need not state that diligent inquiry has been made. Inventory Judicially Noticed: — In determining the insuf- ficiency of the personal estate to pay the debts and funeral ex- penses of the decedent the surrogate may consider the inventory of personal property on file. Final Accounting Unnecessary: — A final accounting by the administrator is unnecessary under section 2759 of the Code of Civil Procedure, before making an order for the sale of real estate. Appraisal — Remedy to Correct: — If an appraisal of the de- cedent's real estate is not satisfactory to any party, such party should move .before the surrogate for relief. 'J"he order made by the surrogate on such motion is probably appealable. Modification of Decree : — The amount of a debt established in such proceedings for sale of real estate before the surrogate may be modified by the appellate court under sections 2586 and 2587 of the Code of Civil Procedure. Appeal fkom the Decree op the Surkogate op Oswego County, entered August 13, 1888, toe the Sale op the Eeal Estate op David Merchant, deceased, poe the Payment op Debts. David Merchant died intestate April 14, 1887. Letters of ad- ministration were on the 23d August, 1887, issued to his widow, Sarah A. Merchant. On the 15th September, 1887, she filed an inventory sliowing that there was personal property to the amount of $446.10, applicable to the payment of debts" On the 7th .March. 1888, under an order of the Surrogate's Court, the ad- ministratrix caused to be published a notice to creditors to pre- sent claims. On the 9th April, 1888, Warren Merchant, claim- ing to be a creditor of the estate to the amount of $1,537.83 with interest from 1st December, 1887, presented a petition to the surrogate for the sale of the real estate for the payment of debts. Shortly thereafter he presented his claim to the administratrix which she rejected and offered to refer. It was not referred. Upon the petition, a citation was issued to the proper parties and served and a trial had before' the surrogate. He found among other things that there was due to the petitioner on July 17th, 1888, over and above all payments the sum of 11,008.18. The administratrix appealed. Argued before Hardin, P. J., and Martin and Merwin, JJ. James Gallagher, for appellant. Samuel H. Wandell, for respondent. AUDENIJA. 145 Merwin'j J. The main question litigated before the surro- gate was the claim of Warren Merchant against the estate. The fact that this claim was presented to and rejected by the administratrix did not deprive the surrogate of jurisdiction to determine its validity in the proceeding before him {Matter of Application of Haxton, 102 N. Y. 157). The claim was for work, labor and services upon the farm of the deceased, from June 24, 1877, to December 1, 1887. The claimant was a son of the de- ceased and a member of his family. It was therefore incumbent on him to show, either an express promise that his services should be paid for, or that such was the expectation on both sides [Williams v. Hutchinson, 5 Barb. 124, and cases cited; Greene v. Eoberts, 47 id. 521). The surrogate finds that in August, 1881, there was an agreement between the deceased and his son Warren, whereby the deceased hired Warren to work for him on his farm and agreed to pay him the going wages for such work during the working season, being from April 1 to Decem- ber 1, of each year Warren should stay and work for him, and that Warren under this agreement worked two and one-half months in 1881 and eight months in each of the years 1883, 1883, 1884, 1885, 1886, 1887, making in all fifty and one-half months. We think the evidence is sufiBcient to sustain at least a finding that there was a mutual understanding that Warren should be paid for his services what they were reasonably worth. That would be sufiBcient for a basis for the claim. The surro- gate includes in the time of service eight months of the year 1887, being from April 1 to December 1. The deceased died on the 14th April, 1887, so that the query is whether in such a case the contract can he extended beyond the death. The con- tract here was not for any fixed time; there was no writing. The claimant, if he recovers at all, recovers the reasonable value of the services that he performed for the deceased. We think he should not recover for any thing occunung after the death. This would reduce the time to forty-throe months. As to the value of the services, as well as to the amount he worked each year aside from 1887, there is no particular dispute. The facts in that regard were such that if the evidence presented by the claimant was not corr£Ct, the true version could have been readily presented. The surrogate apparently allowed interest from the close of each year's service. In tlie account presented, interest was not claimed. In the petition it was claimed from December 1, 1887. There are cases holding that upon an unliquidated demand for services, interest should not be allowed {Robinson v. Stewart, 10 N. Y. 197; Oallug v. Perne,4: W. Dig. 363). That rule should be applied here and interest only allowed from December 1, 1887. Upon the trial, Warren Merchant being upon the stand as a witness in his own behalf was asked the question, "Did you perform work on these premises ? " This was objected to as in- 19 146 Addenda. competent under section. 829 of the Code and the objection was overruled and exception taken. The answer was, " Yes." The question was then asked "State what you did there aside from personal transactions with Mr. Merchant." There was the same objection, ruling and exception. It is claimed that these rulings were erroneous. In Lerche v. Bracher (104 N". Y. 167), being an action for services performed by plaintifi for defendant's testator, the plaintiff was allowed to answer the question " What was done by you excepting, of course, personal transactions or communications with the deceased, Mr. Van Wych, from the time you first commenced your labor down to his death ?" This was held to be proper, it being said if there was any improper evidence given under it, the remedy was by motion to strike out. In DenisB v. Denine (110 N. Y. 563), where a wife made a claim on contract against the estate of her husband, she was asked as a witness in her own behalf the question " Prom the date of your marriage who provided the necessaries for the house and the support of the family ?" This was held to be proper. In the present case, it is to be borne in mind that the fact simply of performance of work would not, as in some other cases, author- ize any inference of an implied promise to pay nor was the evi- dence offered on that basis. We think the rulings were not erroneous. Besides. there is other evidence on the part of the claimant, uncontradicted, that shows substantially the same thing, so that the ruling, if wrong, was harmless. It is further claimed by the appellant that the surrogate erred in overruling the objections made to the petition to the effect that material allegations in it were on information and belief and the grounds of the information were not stated; that the petition did not state that diligent or any inquiry was made to ascertain the truth of the facts stated and uo application had been made to the surrogate for an inquiry as provided by section 2753. The petition seems to state all that the statute requires. The fact that some statements are on information and belief does not affect the question. They must necessarily be so in many cases when the petition is by a creditor and if he has credible information there is no occusion to have the inquiry authorized by section 2753. As long as the facts are in the petition that give the surrogate jurisdiction, it need not neces- sarily state that diligent inquiry has been had {Matter of Oer- man BanTc, 39 Hun, 161). The truth of the statements was a matter to be investigated by the surrogate on the trial. We think the objections were properly overruled. The conclusion of the surrogate that the personal estate was insufficient to pay the debts was justified by the case before him. He had a right to consider the inventory on file {Forbes y..Hal- sey, 26 N. Y. 60), and a final accounting was not necessary before making the order (section 2759). A point is made by the Addenda. 147 appellant as to the appraisal called for by section 3760. The proceedings of the surrogate under that section are not before us; the appraisal is not a part of the record. It seems to have been an ex parte proceeding. If not satisfactory to the appellant, she should have moved before the surrogate for relief, and if the order then made was not satisfactory she would very likely have had a remedy by appeal. No other questions are raised that call for special consideration. It follows that the decree is correct except as to the amount of the debt to the respondent. That can be adjusted here under the power given by sections 3586 and 3587 of the Code. Forty- three months' service at $20 a month would be I860. Deducting payments of $157.50 allowed by the surrogate there would be a balance of $702.50, which, with interest from December 1, 1887, to August 13, 1888, would be $727.31. The decree should be modified by reducing the debt of Warren Merchant as fixed by the decree -to the sum of $737.31, and as so modified should be affirmed without costs of this appeal to either party as against the other. Martin, J., concurs. Hakdin, p. J., concurs in the result, saying that the ruling under section 839 is doubtful. INDEX PAGE. Account ; stated of committee of lunatic 44 intermediate, definition of term 104 Accounting ; formerly required 25 no longer necessary before citation . ^ 25, 144 petition during pendency of 26 surrogate may require 28, 94 Adjournment ; of distribution 93 Administration ; expenses of, will not authorize sale 4-5 (See, however, 92.) letters of, definition of term 103 Administrators ; cannot pay debts barred by statute 5 accounting required of 28 necessity of making them parties 31 foreign cannot petition 34 several administrators applying 34 when restrained by injunction 35 cannot allege their own negligence 39 cannot set up partition sale 40 overpayment by 44, 45 allowance or rejection of claim by 45, 145 cannot discontinue proceedings at will 50 must give bond upon executing decree 63 duty as to sales 66, 67, 68 penalby for not giving notice 67 authority on sale 68 cannot purchase at sale 69 liability for fraud in sale 70-71 when not liable as such 85 payment of sum found due on accounting 88 (See Executors.) 150 Index. PAGE. Admission ; by representative does not prevent limitation. . 37 by representative not binding on heir 41 prima facie evidence of debt 41 Annuity Table 98 Ambiguity; of section 2793 89 Appeal ; from verdict 55 costs of 55 errors only available on .- 57 parties to 57 heirs may take : 57 purchaser may take 79 from supjilementary decree 86 from distribution by creditor 94 from appraisal of real estate 144 Application of Personal Property ; must be made before resorting to realty 27 is made by law 47 law assumes that it has been made 47 Appraisal ; surrogate to appoint appraisers 59 bow made 59 report of 59 remedy to correct if unsatisfactory 144 appeal from 144 Assets ; rule for marshalling 47 determining insufficiency of 48 definition of term 103 (See Property.) Attorney ; services in partition action cannot be paid out of fund from sale 6 Bond ; required before execution of dacree 63-64 conditions of such obligation . . .• 63 successor of deceased or disqualified representative or freeholder must give security 65 to be given by purchaser of decedent's interest in lands sold on contract 79, 80 penalty of bond on sale 80 Burden of Proof; when on contesting party , . 41 of jurisdictional facts 48-49 shifted by act of 1850 .-' 48-49 Cemeteries ; exempt from execution 2 Index. 151 PAGE. Child ; mother's charge for care of, will not authorize sale. 6 performing services for parent 145 Citation ; when to issue '. 29 requisites of 29 to whom directed 29 directed to a class of persons . . , 29-30 must contain general clause 32 when defective 34 returnable in less than statutory time 34 when it should be refused 34 publication of 35 proceedings on return of 37 upon disposition of surplus money 101 upon return of, definition of term 104 Common Law ; statutes derogatory of, to be strictly con- strued 4 no right by, to sell real estate 4 Compensation ; of representative 93 not to exceed certain amount 93 services of attorney 93 commissions allowed 93 Computation ; of time 14 of dower 97-98 Confirmation. (See Sale.) Contest of Will ; allowance on, not payable out of pro- • ceeds 92 Contribution ; heir cannot levy on devisee 46 Conveyance ; requisites of 72, 73, 74 effect of 76 Costs ; of judgment not payable out of proceeds 42, 92 not claim against estate 46 of appeal from order 55 to be adjusted by supplementary decree 86 against executors not chargeable to heir 86 surrogate directs payment of 86 creditors not entitled to 86 awarded 'petitioner, payment of 88 County Treasurer ; proceeds paid over to 83 decrees and orders delivered to . ... j 87 must pay out proceeds as directed 87 152 Index. County Tkeasurer — Continued. page. securities to be in name- of 94 must collect moneys 95 investment of dower funds 97 to deposit surplus of infant heir 102 Creditor ; time for application extended - , - 17 disability of 18 when petition by, is defective 31 petition by . , 24, 35, 143 when limitations apply to 34 may compel executor to sell 34 assignee of a debt may apply 34 can insist on continuance of proceeding 50 may revive or expedite proceedings 50 may require administrator to proceed 51 of firm, may sell estate of a partner 52 neglecting to establish claims 58 rights of, are paramount to heir 75 unnecessary party to appeal from second supplementary decree 86 not entitled to costs 86 distinction between individual and copartnership 93 must see proceeds properly applied 94 right to appeal from distribution 94 of heir has lien on surplus 101 Crop ; right of purchaser of land to 77, 78 Death ; of interested party 35 what is not proof of 36 of executors or administrators 65 services performed after 143 Debt ; when it becomes lien on land 4 character of, is changed by statute 4 what will not authorize sale 4 proof of 37 what may be established 43 judgment on deficiency in foreclosure 43 may be legal or equitable claim 43 claim for mesne profits [ 44 necessaries for imbecile 44 must exist against decedent in his life-time 44 established on first hearing may be controverted on dis- tribution 84 Index. 153 Debt — Continued. page. order of payment on distribution 88, 89, 91 priority of 91 what can be paid as 92 definition of term 103 Decree ; for disposal of property 52 must specify and determine debts 52 must specify funeral charges 52 must specify rejected claims 52 effect of recitals in 52 impeachment of, collaterally 53 when refused 53 proofs necessary to obtain 53, 54 requisites of ... 56 must describe property 56 conclusive as to assets 57 becomes lien on land 58 when to direct mortgage or lease 59 execution of, as to reserved property 61 bond required before executing 63 appointment of freeholder to execute 63 order directing execution of 64 appellate court directing execution 64 execution of not suspended when 65 modification of, by appellate court 144 Deed ; must set forth order of sale 72, 73 errors in, effect of 74 sufi&ciency of description 74 Defense ; what is proper as 39 administrator cannot plead his own neglect 39 when deficiency of assets improper 40 administrators cannot set up partition sale 40 validity of judgment can be contested 40 non-application of personal estate 40 may be legal or equitable , 40 attacking discharge in bankruptcy 40 when section 829 is inapplicable 41 Delay ; when proper in proceedings 27 Devisee ; takes land subject to debt 4 purchaser from, takes subject to lien of statute. ..... 13 necessary party to proceedings 30 20 154 Index. Devisee — Continued.' page. may contest proceedings 37 may make himself a party 37 heir cannot levy contribution on 46 exonerated from debts established 83 action for restitution 106 (See Heir.) Discontinuance ; administrator cannot have 50 must be by order 51 terms of 51 Disputed Claim ; efEect of rejection 45, 46, 48, 145 rejection does not oust jurisdiction 48, 145 surrogate may adjudicate 49, 50, 143 must be specified in decree 52 Distribution ; of proceeds 83 proceeds paid to county treasurer 83 notice of, to be published 83 hearing proofs of claims for 83 order of 87 adjournment of 93 no distinction between legal and equitable assets 94 Dower ; when grantor takes subject to 76 in premises sold on contract 81 how adjusted on distribution 87 amount in contract lands 96 is one-third of gross amount 96 devise not inconsistent with claim for 96 in interest upon purchase-price 96 investment of 97 payments by county treasurer to widow 97 computation of 97 tables for computation 98 rule for computation *. 98 Evidence ; judgment is presumptive 38, 41, 46 when judgment is 46 offer incompetent when 46 inventory presumptive of personal property 47 sufBciency of, presumed 54 parol to supply records 57 Exempt Property ; seat or pew in church 2 cemeteries 2 In'dex. 155 Exempt Peopekty — Continued. page. land set apart for family burying-ground 2 homestead 3 married woman's homestead 3 Hxecution ; when it cannot be issued 11 judgment must be revived before issuing 11 Executors ; accounting by, unnecessary 25 formerly required 24 when, should not petition 24 necessity of making them parties 31 must give bond before executing decree . . , 63 duty as to sales 66, 67 penalty for not giving notice 67 cannot purchase at sale 69 liability for fraud in sale 71 payment of sum found due on accounting 88 (See Administrators.) Expenses ; of proceeding, order of payment 87 Foreclosure ; attacking proceeding for 27 not affecting proceedings 98 Foreign Administrator ; cannot petition to sell realty . . 33 Forms ; petition 107-Iia creditor's notice of pendency of action 112 order for executor or administrator to account 113 order that citation issue 114 citation 115 order for trial by jury 116 order for appraisement of real estate 117 appointment of appraisers 118 appraiser's oath 119 a-ppraisal ofa-eal estate 119 affidavit of appraisal 119-120 decree for sale 120-124 decree for mortgage 124 bond on disposal of real property 124-126 order appointing a freeholder 126 order directing execution of decree 127 notice of sale 128 report of sale 129 notice of motion for confirmation 130 order vacating sale- 131 156 Index. FoEMS — Continued,. page order confirming sale 133 deed upon sale 133-135 order for distribution of proceeds 136 notice of distribution 137 notice to widow 138 consent of widow to accept gross sum in lieu of dower. 138 supplementary decree on distribution 139-141 Fraudulent Conveyance ; does not estop heir contesting. 42 Freeholder ; when appointed to execute decree 63 must give bond 63 creditors may designate 63 Funeral Expenses ; include headstone 1-6 when considered excessive 6 sale authorized for payment of 6 order of payment of on distribution 88 Guardian ; for infant parties 30, 32, 33 consent of, is necessary 33 when appointment of, unnecessary 33 appointed on surrogate's motion 33 testamentary, cannot purchase lauds 69 when appointment of, presumed 82 surplus money of infant paid to 102 Heir ; takes land subject to debts 4, 75 liability for ancestor's debts 7 necessary party to proceedings 21, 30, 31 entitled to notice 21 may contest proceeding 37 may make himself a party 37 not estopped by ancestor's fraudulent acts 43 cannot levy contribution on devisee 46 estate descended to, first applied 47 creditor's rights paramount to title of 75 purchaser's title paramount to rights of 76 mortgagee from, protected 76 has claim on surplus money 77 exonerated from debts established 83 action for restitution 166 (See Devisee.) History ; of proceedings to sell real estate 4 Homestead ; exempt from execution .• . 3 Index. 157 Homestead — Continued. page. married women's exemptions 3 when exemptions expire 3 right of exemption not aiiected, when 3 Imbecile ; claim for necessaries furnished 44 Impeachment ; of order of sale 53 Infant ; no jurisdiction over, unless guardian is appointed . 30 heirs may be parties 33 necessity of appointing guardian for 32, 33 curing omission to appoint guardian 32 proceeding when widow is 87, 88 estoppel of, from contesting 94 investment of fund belonging to 102 Inheritance ; definition of term ^ . . . 105 Injunction; restraining administrator from applying 35 in supplementary proceedings to restrain surrogate 90 Intestate ; definition of term 103 Inquiry ; as to unknown facts 28 when unnecessary 1 43 Inventory ; presumptive evidence of the amount of personal property 47 may be judicially noticed 48, 143 Irregularities ; what do not affect proceeding 81, 82 Judgment Creditor ; cannot institute proceedings 6 must sell real estate on judgment 6 must share pro rata 92 Judgment ; against executor, only face of, can be paid ... 5 statutory lien of 7 when not a lien on real property 7 presumptive evidence of debt 38, 41, 46 may be contested by parties 37, 38 limits amount of debt 38 payment interposed as defense to 38 not conclusive against heir 39 validity of, can be litigated 41 for deficiency in foreclosure 43 amount of, liquidates claim 43 when evidence of debt 46 when rendered on merits 46 Judicial Notice ; of papers on file 48, 143 Judicial Settlement ; definition of term 104 when it may be required 105, 106 158 Index. PAGE. Jurisdiction ; Surrogate's Court has control of all property in State 2 no common-law jurisdiction to sell real estate 4 Supreme Court cannot order costs paid from realty ... 4 when decision not res adjudicata 5 when Surrogate's Court will appear to oppose Supreme Court decree , 5 depends on petition 21 of persons is essential , 30 statutory mode of acquiring must be followed 30 not obtained over infants, when 30, 33, 33, 34 of surrogate is exclusive 38 papers on file may give 48 of subject-matter, how acquired 48 burden of proof of 48, 49 surrogate's equity powers 49 to determine disputed claim 49, 50, 143 defects in, not cured by statute 57 Jury ; trial by, when ordered 54 what order for, must state 54 discretionary with surrogate 55 when proper to refuse , 55 how reviewed 56 when new trial granted 56 verdict to be certified 56 appeal from verdict 56 Laches ; not attributable, when 43 Lands held in Trust ; not subject to disposal l Lease ; when directed by decree 59 effect of 59 power, to lease and to sell may exist 77 not affected by irregularities 81 Legacies ; personal property exhausted in 27 property sold to pay distributable 84 Limitation ; period of . ; 12 when application to dispose of realty to be made 12 no limitation before statute 12 object of limitations 12 operation of the statute 13^ 14 when statute ceases running 13 In'Bex. 159 Limitation — Continued. page. effect of expiration of three years' limitation 13 what considered reasonable time 13 computation of time 14, 15, 16 ■ reviving debt 16 when limitation available defense 17 creditor's time extended 17 disability of creditor 18 admission by personal representative does not prevent running of statute 37 of the amount recovered 38 Lunatic ; stated account of committee ... 44 Mesne Profits ; claim for, a debt ,44 Mortgage ; holder of, not necessary party 31 judgment for deficiency on foreclosure of 43 when directed by decree 59 effect of 59 not affected by irregularities 81 Nature of Proceeding ; is not " an action " 4 is not a lien 4 must be treated as an action 51 Necessaries ; furnished incompetent person 44 New Application ; when required 52 Next of Kin ; definition of term 104 Object of Sale ; for making pro rata distribution 3 when it no longer exists , 3 Omission ; of portion of property in description 36, 57 to give notice of sale 66 (See Ieregtjlaeities. ) Onus Probandi. (See Burden oe Peoof.) Order of Sale ; of decedent's realty 61 Over-payment ; by administrator 44, 45, 88 Parcels ; sale by, when proper 61 separate, to be separately sold 69 Parent and Child ; services rendered . . — 143 (See Child.) Parties ; heir is a necessary party 21 purchaser at partition sale is , 31 who are necessary 29, 30, 31, 32 when not ascertained 29 necessity of citing personal representative 31 160 Index. Parties — Continued. page. holder of mortgage is not necessary 31 may be infants 32 death of 35 who may be 39, 50 to appeal from supplementary decree 86 Partition ; not afEecting proceedings 98 Personal Transactions ; when section 8"^9 is applicable. 41 what questions proper under section 839 143 Person Interested ; definition of term 104 Petition ; showing nothing but administrator's expenses, will be denied , ,, , 5 requisites of 19 what must be stated in 19 when filed 30 effect of filing 20 may be made before debts due 30, 31 what petitions are defective 30 surrogate's jurisdiction depends on 21 when denied 23 what petitions are sufiicient 23 must describe ail real property 22 may ask for sale only '..... 22 need not contain negative allegations 23 several petitions construed together 33 statement of property in 23 may be verified before justice of the peace 24 made by creditor 24, 143 when executors should not make 36 filed during accounting 26 when second petition unnecessary 27 is deemed an affidavit 30 papers on file considered with 48, 144 upon disposition of surplus money 101 Pew in Church ; executor not liable to account for 2 can be sold by creditors 2 exempt from execution 3 is part of real estate ^ . . . 2 Posting Notices ; of sale of realty 67, 68 Precedent Estates ; created by will 63 Prior Sales ; by heir, of undivided interest 62 Index. 161 PAGE. Proceeds of Sale ; not subject of action 85 Proofs ; on return of citation 37 of debt not due 42 amount required 45, 46 what judgment creditor must show 45 common-law proof necessary 45 what are necessary to obtain decree , 53, 54 of claims oil distribution 83 Property ; what may be disposed of 1 all within limits of State subject to disposal 2 inadequacy of personal, not sufficient to authorize in- ference of testator's intent 9 when not legal assets 10 when real is not converted into personal 10 personal, exhausted in legacies 27 personal, must be applied first 27 inventory presumptive evidence of personal 47 what personal property to be considered 48 determining insufficiency of personal 48 uiicollected and litigated demands excluded 48 how described in decree 56 omission of portion of . . . ; 56, 57 order in which sold 61 sold to pay legacies 84 unsold, how disposed of _ 84 situated in different States 84 Publication ; of citation, wieii necessary 35 Purchaser ; from heir, when protected 61 executor or administrator cannot be . ; 69 right to deduct claim from amount of bid 72, 73 effect of proceedings on purchaser from heir 75 title paramount to heir 76 title paramount to unrecorded sheriff's deed 77 title of, subject to incumbrances 77 right to growing crop 77, 78 right to cord wood 78 cannot be compelled to complete purchase 78 is not party to proceeding 78 has right to appeal 79 ^ of land subject to contract payments, must give bond . 79 21 162 Index. PuKCHASER — Continued. page. when such bond unnecessary 80 subrogated to decedent's Interest in contract lands .... 81 may enforce performance of contract 81 title not affected by irregularities 81 Real Property ; definition of term 104 Recitals ; in decree, effect of 5'i Records ; supplying by parol evidence 57 Referee ; appointment of 105 Rejection or Allowance ; of claim by administrator. 45, 46, 143 Rents ; accruing after death are realty 3 not basis of administration 3 Restitution to Heirs ; action for 106 Sale ; may be public or private 56 price at private sale 56 when it shotild be ordered 59 of whole or part of estate 60 discretion of surrogate in determining 60 postponing as to portion of property 60 order in which property should be sold 61 by parcels, when proper 61 precedent estates by devise 62 place and manner of 66 private, must be by written contract 66 public, to be at certain hours 66 penalty for defacing notice 66 omission to give notice does not affect validity 66 notice of, to be posted 67 notice of, to be published , 67 description of property in notice 67 penalty for not giving notice 67 separate parcels separately sold 69 unincumbered lands to be first sold 69 may be on credit, regulations as to 69 executor or administrator cannot purchase 69 liability of administrator for fraud in 70 report of, to be filed 71 investigating report 71 when re-sale ordered 71, 72 manner of conducting re-sale 71 when sale confirmed 72 Ikdex. 163 Sale — Continued. page. order of confirmance, requisites of 72 requisites of conveyances 73 necessity of confirming sale 74, 75 effect of confirmation 75 does not change re.ilty into personalty 77 ousts title of the heirs 77 order for, does not revoke order for lease 77 of contract interest 79 bond to be given by purchaser 79 of part interest under contract 80 effect of sale of contract interest 80 Security ; must be in county treasurer's name 94 on investment of surplus money of infant 102 Sesin ; when decedent was seized 11 Subpoena ; to prove averments in the petition 29 Subrog^ation ; of administrator as assignee of debts paid. . 46 of decedent's interest in contract lands 81 Supplementary Decree ; requisites of 85 second may be made 86 appeal from 86 must adjust costs 86 must fix payments 86, 87 certified copy to be given county treasurer 87 Surplus Money ; heirs have claim on . . 77 claims as to 84, 85 distributable among heirs and devisees 89, 101 disposition of 100 distribution of 101 lien of creditor of heir upon 101 decree of distribution of 102 investment of 1 02 Surrogate ; definition of term 103 Surrogate's Court ; has jurisdiction to sell all property in the State 3 Surviving Partner ; selling estate of 52 Taxes ; when paid from personal estate 42 when chargeable on land 43 when payment of, allowed as preferred claim 42, 91 Testamentary Power of Sale ; real estate subject to, cannot be sold 1-7 164 IlfDEX. Testamej^takt Powee OB Sale — Continued. page. creditor may relinquish 7 may be impracticable of execution 7 Testamentary Trustee ; definition of term 103 Time ; computation of 14 Title ; surrogate cannot determine 38 proceedings stayed if controverted 38 Trial by Jury ; when verdict not disturbed 11 when ordered 54, 55 how reviewed 56 appeal from verdict 56 Trust Estate ; not subject to disposal 1 Unincumbered Lands ; to be sold first 69 Unknown Facts ; inquiry as to 28 Unliquidated Claim ; allowing interest on 143 Unsold Property ; disposition of 84 Unwritten Contract ; vendee's title under, may be sold. . 1 Vault ; executors not entitled to sell 62 Verdict ; of jury trial to be certified to Surrogate's Court. 56 appeal from 56 Vouchers ; must remain on file 52 Ward ; may lose rights by laches 69, 70 What Property may be Disposed of 1 Will ; definition of term 103 construction of 8, 9, 10 direction to sell and convert into cash 8 formal words will not create charge on realty 8 authority to incumber to carry into efEect 8 devise to wife 9 devise to residue undisposed of 9 power to sell does not carry power to mortgage 9 Wood ; right of purchasers as to 78 ( t