
    Arthur W. Palmer, an Infant, by Frederick A. Reid, his Guardian ad Litem, Respondent, v. Noyes F. Palmer, Individually and as Administrator, etc., of Noyes G. Palmer, Deceased, Appellant; Clara Palmer and Others, Defendants.
    
      Partition—claim.of an administrator of the common ancestor against his estate— it must be established in the court of the surrogate, not in the partition suit—three years’ Statute of Limitations as to Us lien on the land.
    
    Upon the trial of an action brought to obtain a partition of certain lands, the administrator of the ancestor, through whom all parties derived their title to the premises in question, moved to modify the interlocutory judgment by directing the referee to take proof of the claim' of the administrator as a general creditor of the deceased, more than three years having elapsed since letters of administration had been granted.
    
      Held, that the application was properly denied;
    That the claim was one which should he determined by the proper surrogate, who should also, upon an accounting by the administrator, decide whether the personal property was insufficient to pay it.
    
      Semble, that, under section 2750 of the Code of Civil Procedure, the real property had become relieved from the lien of the debts of the deceased owner.
    Appeal by the defendant, Royes F. Palmer, individually and as administrator, etc., of Royes G. Palmer, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of February, 1896, denying his motion to modify the interlocutory judgment entered in the action.
    
      William E. G. Mayer, for the appellant.
    
      Gyrus Van V. Washburn and .A. F. Van Thun, Jr., for the respondent.
   Cullen, J.:

After the trial of the issues in this action, which is brought for a partition of certain cemetery lots and the entry of. an interlocutory judgment herein, the appellant moved to modify that judgment, by directing the referee to take proof of the claims of the appellant, as a general creditor of the deceased ancestor, through whom all parties derived their title to the premises in' suit. The application was denied by the Special Term. We think this was the proper disposition of the application. More than three years had elapsed since letters of administration had been granted. It is, therefore, probable that, under section 2750 of the Code, the property had become relieved from the lien of the debts of the deceased owner. The provisions of the Code relative to a sale of a decedent’s real estate for the payment of his debts have been so entirely changed since the time of Mead v. Jenkins (95 N. Y. 31) that there is little or nothing in the decision in that case applicable to the present state of the statute. -However that may be, it is plain that the amount and existence of any claim of the appellant against the estate of the decedent should not be determined in this proceeding, but established in the mode provided by law. Hogan v. Kavanaugh (138 N. Y. 417) was an action to direct the sale of real estate for the payment of legacies charged upon it. One of the parties to the action claimed a lien upon the lands, as a general creditor of the testator, alleging insufficiency of personal assets. This lien was allowed to the party-. On appeal, the judgment was reversed-, the court holding that such claim's against the real estate of a deceased person could only be established in the regular process, of administration before the tribunal provided by law to administer upon the estate. This rule applies with peculiar force to the case of the present appellant. He is the administrator of the deceased. By the statute his" claim can only be determined by the surrogate. He has had entire control of the proceedings of administration. As to him, there is no reason why, if he has a claim against the estate of his intestate, that claim should not have been established before the surrogate, his accounts as administrator passed, and, if there was a deficiency of personal assets to pay the charges'against the estate, that fact be judicially established by the decree of the surrogate.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All'concurred.

.Order affirmed, with ten dollars costs and disbursements.  