30 Barb. 494 | N.Y. Sup. Ct. | 1859
This is an appeal from an" order or decree of the surrogate of the county of Suffolk directing the sale of certain lands, whereof Henry Pelletreau died seised, and the application of the proceeds to the payment of his debts. The proceedings were instituted by the appellant, who is the executrix and also the devisee of the testator. By the will he gives and devises to his wife, the appellant, all his estate, both real and personal, so long as she remains his widow, and makes no disposition of the estate in remainder, which accordingly descends to the respondent, Cornelia Smith, his heir at law. The personal estate proved insufficient to pay the debts,
The appellant contends that the estate in remainder should he first sold and the proceeds applied to the satisfaction of the debts in the first instance; or that the value of the petitioner’s life estate in the premises should be computed and ascertained upon the principles applicable to annuities, and deducted from the proceeds of the sale, and the residue applied to the satisfaction of the debts, before any part of the ascertained value of the petitioner’s life estate' is appropriated to that object. This is quite an ingenious theory, and one strictly consonant to justice and equity, for it is apparent that the testator intended the devisee for life should he the principal and primary object of his bounty. This, however, is not a proceeding where the various estates and interests which might he carved out of the entire fee can he recognized and adjusted upon equitable principles. The authority of the surrogate is derived solely from the statute concerning the powers and duties of executors and administrators, in relation to the sale and disposition of the real estate of their testator or intestate, and its directions must he rigorously observed. His authority is limited to making an order or decree to mortgage, lease or sell so much of the real estate of the testator or intestate as shall be necessary to pay his debts. It is the real estate of the deceased which is to he leased, mortgaged or sold, and not any particular estate (such as an estate for years, for life, or in remainder) therein which he may have devised to another, that is to he sold. The act is not susceptible of execution upon any theory short of a mortgage, lease or sale of the entire estate of the testator at the time of his death. If the money needed to pay the debts “ can he raised by mortgaging or- leasing the real property of the deceased,” the surrogate shall direct such mortgage or lease to he made for that pur
IsTor do I think the surrogate authorized to set apart the estimated value of the appellant’s life estate from the proceeds of the sales, and apply what may remain to the payment of the debts of the deceased, before appropriating any part of
For these reasons I think the decree of the surrogate should be affirmed, with costs.
Lott, Emott and Brown, Justices.]