p. 1023(Surrogate’s Court, New York County.Headnote
1. Partition—Distribution of Proceeds—Judgment—Effect — Creditors’ Claims.The supreme court’s judgment in a partition suit, directing the proceeds of the property sold to be deposited in the surrogate’s court for distribution, and establishing the validity of certain creditors’ claims, and their right to have such proceeds applied towards the payment thereof, is sufficient authority and a binding and effective determination for the distribution of the fund by the surrogate, and of the right of participating therein of such claimants.
2. Executors and Administrators.
Moneys received from an executor from the sale of property under a power of sale in the will cannot be directed to be applied to the payment of the estate’s debt, in an action to sell certain of decedent’s real estate, and to make distribution of the proceeds arising under a sale.
Motion to dismiss an application to sell real estate of Charles Gedney, deceased, to pay debt.
John F. Meyer (Charles A. Deshon, of counsel), for petitioner.
Thomas E. Stewart, for executor.
Muller, Holt & Duross, for creditors, opposed.
The judgment of the supreme court in the partition suit, which directed the proceeds of the real estate sold therein to be deposited in this court for distribution, is sufficient authority for the distribution of such proceeds by the surrogate. Code Civ. Proc. § 1538. That judgment also recognized and established the validity of the claims of certain creditors therein designated, who are parties to this proceeding, and their right to have such proceeds applied towards the payment of their claims. The moneys in the hands of the executor resulting from the property sold by him under the power of sale given by the will of the decedent is also primarily or proportionately so applicable, but it c&nnot be directed to be so applied or distributed in this proceeding. This, however, need not prevent the payment of the claims mentioned out of the moneys now in court, so far as they are applicable to the purpose; reserving thereout a sum sufficient for the satisfaction of the balance of the claims in the event of its being ascertained
p. 1024upon the accounting of the executor, or in some other appropriate proceeding, that the funds in his hands are not available for the payment of such balance. I do not see that it makes any material difference whether the proceedings begun to dispose of the real estate which was subsequently sold, and the proceeds of which are referred to herein, are dismissed or not. Whether the moneys to be now distributed are to be considered as being distributed in an independent proceeding, or in the proceeding sought to be dismissed, the judgment of the supreme court is a binding and effective determination for the distribution of the moneys by the surrogate, and of the right of participation therein of the claimants mentioned. I therefore see no occasion for dismissing the proceeding brought to dispose of the real estate. The party asking such dismissal is allowed to intervene in such proceeding, although it is not apparent what practical utility can result from such intervention, in view of the determination which I have hereinbefore made. In making such determination, I have taken into consideration the amended answer of the party asking such dismissal, and have permitted the same to be filed. Decreed accordingly.