
    Tappen against Kain and another, Executors of Rhea.
    Pursuant to an order of the surrogate, for the wWePreai wh»soid by his atethe°auition Lt* for tlexecutors, at the executors deed to a.,who. the estate to who,exeaCrte?-s’ ^meSfor0l|,5op saie^money nQ tteofficeof the surrogate.
    K. recoveresa judgment efutors of R, anV2i7dcents! pime udminí peared that^át the time of the judgment, the executors ha.d administered assets to the amount of 2000 dollars, and 1 Imoimted, to 381 dollars and 37 cents: 0n a scir.efacüis to - revive the judgment ‘against the ex-écutors of- R, be?ng °Vadmfthel j rttha?as though the ex-ecu were z. . liable Tor the whole proceeds of. the estate.sold,- being 2,500 dollars, yet, that-iinder the-act, (1N. R. LR 452; sess. 36. c. 79. s. 26;) they, were not responsible Immediately to the. creditors of the, testator, hut to -the surrogate, as trustees commissioned by-him to'sell; and that when the whole real estate is sold by or-. » der of the surrogate, the money paid in to his; office becomes equitable assets, and is to be distributed pari and not to the rule of common law, '
    The troth or falsehood of the plea of plene administravii is to be determined by reference to-the=fny^r duly. . ‘ :
    THIS was a scire facias on a judgment, obtained in 1809» , , , , " . ' . by the plaintiff, against the defendants, on a report of referees' in-the.'cause,, for 129 dollars.' and 17 cents» The defendants pleaded plene administravii. ■ At the last Ulster eireuit. a verdict w^s taken for the plaintiff,, subject to the opinion of the court," ?n.the &Ilowingcase r , A ... , '.'../.-y ■
    The whole real estate of. IJavid Rhea, the testator, was-sold by lus executors, pursuant to an order of the surrogate, " Robert Rhea, a brother of Stephen Rhea^ one of the executors, bid off. the estate, at the sale, for the executors, at 25 dollars. , The sale; under the order, of t-lie surrogate', was .admitted: to be re-,§u^ar’ The executors gave a deed to Robert Rhea, and he ?e.c°Hveyed to them. The executors, afterwards, sold the same premises for 2,500 dollars. No’ money arising from the sale wásever brought into the office of the surrogate.. The-whole amount of assets administered by the executors, .at the .timé of. £hé: répojt of the referees abovementioned,' was admit-? ted> pro hac vice, to be -2,000 dollars. The Amount of. the inventory was 381 dollars and 37 cents-. . . -
    Xt-.'wás agreed, , that if the plaintiff was entitled to-judgment* the eourtshouid determine the amount of such judgment. But - : <■ J P if the court should be of opinion that the defendants were not _ . . -¡ ' liable, or baa maintained their plea, then a nonsuit was tó b§ * entered* -- ' ;
    The case wag'submitted to the court, ¡without argumept. .
   Platt, J.

delivered the opinion of the court.

c- , » . » There can be no doubt but that the executors are responsible ■ " , V ... •’ , , , , . a ■ > , - for the whole avails of the lands sold by them, to Wit, 2,500: dollars; but by the twenty-second section of the .11 act relative to the court of probates,” &c., (1 K. & R. 304. 1 N. R. L. 452.) ' it is enacted, “ that the avails of such sale, where the order is to sell ‘part of the real estate only’ shall be considered assets in the hands of the executors or administrators for the payment of debts.” “ But where the whole real estate is ordered to be sold, the moneys arising therefrom shall be brought into the court of probates, or office of the surrogate,” &c.; and there distribution, after public notice, is to be made according to the rule of equitable assets ; that is, among all the creditors, pari passu, without regard to grades, &c.

It appears to me, that, under this statute, the executors are not responsible, at law, immediately to the creditors, where the whole real estate is sold ; and the truth or falsity of the plea of plene administraoit must be determined upon reference to the amount of the inventory only. That was .381 dollars and 87 cents, and it is admitted that the executors have duly paid debts to the amount of 2,000 dollars; and, therefore, the plea is true. Sua executors, they have fully administered. Under the statute, they are trustees, immediately responsible to the surrogate, who commissioned them to sell the real estate; and when the avails are paid to the surrogate, a different rule of distribution prevails from that which governs executors and administrators at common law.

For aught that appears, the executors in this case may have sold the lands on credit, as they are authorized to do by statute, and therefore have not paid over the avails to the surrogate.

Judgment of nonsuit must be entered.

Judgment of nonsuit.  