In re Haig — 6 Dem. Sur. 454

Majority

p. 454

New York County.

Hon. R. S. RANSOM, Surrogate.

July, 1888.

Matter, of Haig. In the matter of the estate of David Haig, deceased.

Headnote

The petition, in a special proceeding instituted to dispose of the real property of a decedent for the payment of debts, need not show the date of issuance of letters (Code Civ. Pro., § 2750); nor is it essential to allege that the property is not “ subject to a valid power of sale for the payment” of debts or funeral expenses.

The purchaser on a sale, in such a special proceeding, acquiring, under § 2778, the interest of the decedent existing at the time of his death, the proceedings are not affected by the happening, pendente lite, of an event whereby the interest of the decedent’s estate becomes augmented.

The holder of a mortgage upon the property, existing when decedent took title, who was not a creditor at the time of the death of the latter, is not a necessary party.

Hearing of objections to regularity of proceedings instituted to dispose of real property of decedent. The facts appear in the opinion.

This proceeding was brought hy the executor of the will of the decedent for the disposition of his real estate for the payment of his debts. It is claimed, in behalf of certain of the parties interested in such real estate, that the proceedings are defective in certain particulars, which I proceed to consider and dispose of as follows:

1. The claim that the petition is defective by reason of its omission to state when the letters testamentary

p. 455

were issued is unfounded. While failing to show the precise date of their issuance, the petition avers their - issuance, and states facts showing that the present proceeding was commenced within three years after they were issued. This is sufficient (Code Civ. Pro., § 2750).

2. The will of the decedent shows that the property sought to be disposed of is not subject to a valid power of sale for the payment of the debts or funeral expenses, and there is nothing in the law that requires the petition to contain an allegation of this fact (id., 2752).

3. Thomas Haig, the brother of the decedent, who was a party to this proceeding, and is referred to in the petition.as one of his heirs, and as a person upon whose death, without issue, the decedent would have become entitled to an additional interest in certain of the real estate in the petition mentioned, has died since the commencement of the proceeding. It is alleged, and not disputed, that his heirs are parties thereto. The statute (Code Civ. Pro. § 2778), recognizes the power of the court to vest in a purchaser such interest in the estate disposed of as the decedent had at the time of his death, and makes no provision with respect to the disposition of any estate or interest subsequently acquired. It is, therefore, unnecessary to inquire whether or not such interest or estate has been so acquired. The death of the decedent’s brother has, therefore, no effect on the regularity of this proceeding.

4. The objection to the omission to make a party to the proceeding the holder of a mortgage upon the

p. 456

property is of no effect. It does not appear that such • holder was a creditor of the decedent at the time of his death, and the allegations of the petition negative the notion that he was. It is stated on behalf of the petitioner, and not denied by the contestants, that the mortgage was a lien upon the property when acquired by the decedent and the other parties in interest. Any disposition which may be made of such property under the decree which shall be entered herein, would be subject to the lien of the mortgage. The holder is an unnecessary party hereto.

The petitioner is entitled to a decree.