2 Mills Surr. 208 | N.Y. Sur. Ct. | 1901
This proceeding to sell the lands of the decedent for the payment of his debts was commenced after the property sought to be reached had been sold under a judgment rendered by the Supreme Court in an action of partition. The interest of the decedent in the property was an undivided one-third, and one-third of the net proceeds of the sale, after th® payment of costs and specific liens, was, pursuant to section 1538, Oode of Civil Procedure, deposited with the chamberlain of the city of New York, three years not having then expired since letters of administration on the estate of the decedent had been issued out of this court. Notwithstanding such sale the proceeds of the real property of the decedent stood in the place of the land until final distribution, and this proceeding, having been seasonably commenced within three years after the issuance of letters, may progress to a decree, and “the directions contained in the decree, relating to the property sold, are deemed to relate to1 those proceeds.” Code Civ. Pro., § 2791. The general policy of legislation in this State has been to sustain the right of creditors of a decedent, whose personalty was inadequate, to enforce payment from his real property, but the methods in which the proceeds of property converted into cash by the decree of a court other than the Surrogate’s Court could be reached have not always been uniform. As to real property sold to satisfy a mortgage, the surplus remaining after satisfying specific liens is required to be paid into the Surrogate’s Court having jurisdiction to distribute the personal estate of the decedent, or to the county
Decreed accordingly.