Fitch v. Witbeck

The Chancellor. From a careful examination of the provisions of the revised statutes, I am satisfied that several of the appellant’s objections to the proceedings before the surrogate were well taken. The return states that the order appealed from was made after heating the proofs and allegations of the parties. No proofs, however, are returned by the surrogate. But the return states that it appears by the minutes of the surrogate, that upon the hearing before him, the administrators abandoned all claim for authority to mortgage or sell the real estate of the decedent, except for the purpose of paying the claims of the administrators. The return also states that it appeared, by the proofs, that their claim was for the amount allowed them, upon the final settlement of their accounts, for disbursements, expenses and commissions in the administration of the estate; and for the surrogate’s fees and charges, upon the application for the final settlement of then accounts as administrators. It is evident, therefore, that no part of the $156, for the payment of which this order of sale was made, was a debt due from, or owing by, the decedent. Nor was it a part of the debts which the surrogate, upon making the first order of sale, in 1835, allowed and adjudged to be valid and subsisting demands against the estate of the deceased. (See 2 R. S. 102, § 13.) This proceeding, therefore, was not a continuation of the application made in 1835. But it was an original application, on the part of the administrators as such, [164] and not by the creditors of the decedent, for a further sale of real estate to pay debts which were not allowed by the surrogate upon the making of the first order. They were therefore bound to make their application within three years after the granting of the letters of administration to them, in 1834. It is very doubtful also whether the surrogate is authorized to make an order for the sale of the real estate of the deceased for the mere purpose of paying the executors or administrators then claim for the expenses of administration; where there are no existing debts for which the devisees, or heirs at law of the decedent, were liable in respect to' the real estate which had come to them, by devise or descent. The executor or administrator should retain sufficient of the personal estate in his hands to pay the expenses of the administration. The petitioners in this case, upon the completion of the first sale, should have brought in their whole claim, for expenses and commissions then due to them, for those proceedings; so that the amount of such claim might be deducted from the proceeds of the sale. And if they had paid any debts out of the personal estate, so that there was not enough left to pay their expenses of administration, they should then have asked to be subrogated to the rights of the creditors, whose debts had been thus paid, in the distribution of the proceeds of the sale of the real estate; if the surrogate had any power to allow of such a substitution. But even if these petitioners had been original creditors of the decedent, they were not authorized, in their character of administrators, after the expiration of the three years, to apply for a sale of real estate, to pay debts which were not allowed by the surrogate at the time of the making of the first order. The seventy-second section of the act of May, 1837, (Laws of 1837, p. 536,) allows a creditor of the deceased to make an application to the súrrogate for an order to compel the executors and administrators to sell. But that proceeding must be instituted and conducted according to the original provisions of the revised statutes, on that subject, by citing the personal representatives of the testator, or intestate, to show cause why [165] they should not be compelled to proceed before the surrogate for a sale of his real estate. I am also inclined to think it was a valid objection to the proceedings of the respondents, in the present case, that the administratrix did not join with them in the application. And that the older is erroneous in allowing the administrators to make the sale without her consent and concurrence; especially as no reason is stated in the petition for not making her a party to the proceedings. The order appealed from is erroneous, and must be reversed; and the petition of the respondents must be dismissed. But under the circumstances of this case I shall not charge them with costs.