In re Haig's Estate — 3 N.Y.S. 285

Majority

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In re Haig’s Estate.

(Surrogate’s Court, New York County.

July, 1888.)

Headnote

1. Executors and Administrators—Proceedings to Sell Land—Pleading.

Code Civil Proc. ST. Y. § 2750, provides that, “ at any time within three years after letters were first duly granted * * * upon the estate of a decedent, an executor or administrator * * * may present to the surrogate’s court * * * a written petition for a decree directing the disposition of the decedent’s real property, ” etc. Held, that a petition under this section is not defective by reason of its omission

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to state when, the letters testamentary were issued, where it avers their issuance, and states facts showing that the proceeding was commenced within three years after they were issued.

2. Same—Power of Sale—Provisions of Will.

Such petition need not allege 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, where the will shows such fact.

8. Same—Death of Joint Owner.

The death of decedent’s brother, who had an interest in the land sought to be sold, since the commencement of the proceeding, will not affect the regularity of the proceeding; the court under Code Civil Proc. JST. Y. § 2778, having power only to vest in a purchaser such interest in the estate disposed of as the decedent had at the time of his death. “

4. Same—Parties—Mortgagees.

The holder of a mortgage upon the property is not a necessary party to the proceeding, since any disposition made of the property under a decree would be subject to the lien of the mortgage.

On objections to the regularity of proceedings to sell the land of David Haig, deceased, instituted under Code Civil Proc. H. Y. § 2750, which provides that “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 * * * may present to the surrogate’s court * * * a written petition for a decree, * * * directing the disposition of the decedent’s real property, ” etc.

This proceeding was brought by 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 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 Civil Proc. § 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 (Id. § 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 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 prop

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erty under the decree which shall be entered herein, would be subject to the lien of the mortgage. The holder is an unnecessary party heréto. The petitioner is entitled to a decree.