1 Mills Surr. 606 | N.Y. Sur. Ct. | 1900
Proceeding to sell land for payment of debts. Decedent died May 14, 1892. Letters were issued to her executors January 25, 1893. The petition in this proceeding was filed January 24, 1896; a citation was not issued until April 5, 1900, and was served upon some of the parties within sixty days thereafter. Subsequently supplemental citations were issued and served, and on the return day of the final supplemental citation, the service of citation being now complete, an application is made on behalf of certain of the respondents claiming title to the land, to dismiss the proceeding. As a just ground for this motion it is insisted that the proceeding was not commenced within three years after the granting of letters, and that the court is, therefore, without jurisdiction. Code Civ. Pro., § 2750. This objection cannot prevail for the reason that the proceeding was duly commenced before the expiration of the three years by the filing of the petition. Code Civ. Pro., § 2751. The provision contained in that section requiring the citation, when issued, upon the petitioner, to be served within sixty days thereafter, does, not render the proceedings null for failure to issue the citation promptly on the filing of the petition. Matter of Bradley, 70 Hun, 104, 109; Matter of Phalen, 51 id. 208. It is next contended that under the will of the decedent her debts are expressly charged upon her real estate, and that the remedy of the creditors must be in the Supreme Court to enforce this charge. I do not so construe the will. The only mention of debts or creditors contained in the will is found in the first paragraph, which is to the effect that “ after the payment of my debts and funeral expenses, I give, devise and bequeath,” etc. No power of sale of any kind is found in the instrument. This does not create any charge, though the decedent may have had in mind the fact that the legal remedy now invoked prevented her from defeating the claims of her creditors. Matter of City of Rochester, 110 N. Y. 159; Clift v. Moses, 116 id.
Decreed accordingly.
