In re the Judicial Settlement of the Accounts of Goetzmann

Majority

p. 377

Matter of the Judicial Settlement of the Accounts of Philip Goetzmann, as Administrator, with Will Annexed, of Andreas Schindhelm, Deceased.

(Surrogate’s Court, Erie County,

July, 1916.)

Headnote

Decedents’ estates — no limit of time within which real property may he sold for payment of legacies — Surrogate’s Court — Code Civ. Pro. § 2703.

There is no limit of time within which the real property of a decedent may be sold for the payment of a legacy charged thereon, or for the purposes of distribution.

Where the whereabouts of any of the heirs of a decedent, in this case his only surviving child, are unknown, the surrogate in his discretion under section 2703 of the Code of Civil Procedure, as amended by chapter 443 of the Laws of 1914, may direct a sale of the decedent’s real property to pay a legacy charged thereon, the personal property being insufficient for that purpose.

A contention that any power of the surrogate over the real property of the decedent must be exercised within the time limit of eighteen months from the date of letters testamentary, and that the only remedy to enforce payment of the balance owing upon a legacy charged thereon is an action in the Supreme Court, is untenable.

Proceedings upon the judicial settlement of the accounts of an administrator with the will annexed.

William G. Kilhoffer, for petitioner.

Hortin & Grandison, for Hannah Preas.

Walter F. Hofheins, for Attorney-General.

William R. Pooley, special guardian.

Andreas Schindhelm died on the 15th day of May, 1908, leaving a will which was admitted to

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probate oil the 3d day of February, 1909, and letters of administration, with will annexed, issued to the petitioner herein. By his will, the decedent bequeathed and devised his entire estate, share and share alike, to his children, subject to the payment of a legacy of $3,000 to his wife, Mary Schindhelm. At the time of the execution of the will, decedent had two children, Christina Spanheld, who predeceased him, without issue, and Martin Schindhelm, who left Buffalo in 1893, and whose whereabouts have been unknown since 1902, and who is supposed to have also died without issue.

This is the first judicial settlement of the accounts of the administrator, and this proceeding was instituted upon the petition of Hannah Preas, as executrix of the will of Mary Schindhelm, deceased widow of decedent.

The petitioner alleges in his petition that the personal property was insufficient to pay the legacy to Mary Schindhelm and she is charged with various rents collected by her from the time of decedent’s death until her own death, and a substantial portion of her legacy remains unpaid.

Decedent left real property, and in this proceeding the administrator asks for an order directing the sale of such real property for the payment of the balance due on the legacy to Mary Schindhelm, the expense of administration and for the distribution of their respective shares to the parties entitled thereto.

The special guardian has taken the position that the Surrogate’s Court is without jurisdiction to order the sale of the real estate in this proceeding for any purpose upon' the ground that no proceedings for a judicial settlement or to compel a settlement of the accounts of the administrator were commenced within

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eighteen months from the date of the issuance of letters of administration.

Prior to the adoption of chapter 443 of the Laws of 1914, the surrogate undoubtedly had no authority to direct the sale of decedent’s real property for any purpose other than the payment of debts. This authority was very much enlarged in the act of 1914, and section 2703 of the Code of Civil Procedure now provides that real property may be mortgaged, leased or sold for six different purposes, including the payment of a debt or legacy charged thereupon, and the payment and distribution of their respective shares to the parties entitled thereto where any or all of said parties are infants, incompetents, absentees or persons unknown, whenever in his discretion the surrogate may so direct. Section 2702 of the Code, however, provides that real property shall not be mortgaged, leased or sold under a decree of the Surrogate’s Court to satisfy any claim, debt or demand unless a proceeding for a judicial settlement or to compel a settlement of the accounts of an executor or administrator shall have been commenced within eighteen months from the date when letters first issued to an executor or administrator. The special guardian contends that the sections above quoted do not apply to this case, and that any power of the surrogate over real property must be exercised within the time limit of eighteen months, and that the only remedy of the executor of the will of Mary Schindhelm for the enforcement of the balance owing upon her legacy is by an action in the Supreme Court.

I am not inclined to take this view of the matter. Under the old practice real property could be sold for the payment of debts at any time within, three years after letters were first issued. Under the new practice the time within which such a proceeding can be insti

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tuted for such a purpose has been limited to eighteen months. The purpose of the amendment was undoubtedly to accelerate the administration of estates, and free the real property from the lien of the debts of the decedent so that the heirs or devisees might obtain a clear title within a shorter period of time. The situation in this case is entirely different. Here we have the entire estate charged with the payment of a legacy to the widow which the personal property was insufficient to pay. The whereabouts of Martin Schindhelm, the only surviving child, are unknown. He left the state of New York over twenty years ago, and has not been heard from for many years. If living, he is an absentee; if dead, his heirs-at-law are unknown persons ; so that this case comes within the provisions of both subdivisions 5 and 6 of section 2703 of the Code. In my opinion the legislature has not limited the time within which real property may be sold for the payment of a legacy charged thereupon, or for the purposes of distribution.

An order may, therefore, be entered, directing the sale of the real property for the payment of the balance due upon the legacy of Mary Schindhelm, and also for the purposes of distribution.

I do not think that the executor of the will of Mary Schindhelm should be compelled to bring an action in the Supreme Court for the enforcement of the legacy and for the sale of the real property for that purpose. A reasonable construction of the sections of the Code above quoted would seem to indicate that they were intended to cover just such a situation as exists in this estate. All of the purposes of an action in the Supremé Court can be accomplished in this proceeding and with practically no expense to this estate.

■ Decreed accordingly.