
    (24 Misc. Rep. 350.)
    In re COUTANT’S ESTATE.
    (Surrogate’s Court, New York County.
    July, 1898.)
    Probate—Disposition of Proceeds of Real Property.
    The surplus of the proceeds of decedent’s real property sold under foreclosure, where such property was subject to a valid imperative power of sale for the payment of debts and funeral expenses, should not be paid into the surrogate’s court pursuant to Code Civ. Proc. § 2798, since section 2759 provides that the surrogate cannot distribute the proceeds where there is a power of sale for payment of debts or funeral expenses.
    Application for a distribution of certain surplus moneys arising from the sale of real estate of Emily T. Coutant, deceased, in an action of foreclosure.
    Denied.
    Wendt, Berry & Edson, for petitioners.
    Joseph 0. Levi, Joseph Oscano, J. J. Britton, and Boese & Carhart, for other next of kin.
   AE270LD, S.

This is an application for the distribution of certain surplus moneys, arising from the sale of real estate of which the decedent died seised, in an action brought to foreclose a mortgage thereon, and which moneys have been paid into this court pursuant to a provision to that effect contained in the judgment entered in such action, and which was apparently intended to be a compliance with the directions of section 2798 of the Code of Civil Procedure. That section, however, is applicable only to real property liable to be disposed of as prescribed in the title of which it is a part, which is devoted to the subject of the disposition of a decedent’s real property for the payment of debts and funeral expenses and distribution of the proceeds, and it is expressly provided therein (section 2759) that a decree directing the disposition of such real property can be made only when, among other facts, it is established that the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof, or, if so devised or subject, it is not practicable to enforce the charge or execute the decree, and that the creditor has effectually relinquished the same. I think that, under the terms of this decedent’s will, the real property was subject to a valid imperative power of sale for the payment of debts and funeral expenses, applying the principles laid down in Re Gantert, 136 N. Y. 106, 32 N. E. 551; and, as held in that case, that proceedings under sections 2749-2801, Code, for the sale of the decedent’s real estate to pay her debts, could not be maintained, and that this is not a case in which the surplus moneys in question should have been directed to be paid into the surrogate’s court, or can be distributed under section 2799. I think the proper course for the petitioners to pursue is to apply to the supreme court by motion to amend its decree by striking out the provisions for the payment of the surplus moneys into this court, and directing that they be returned to that court.

The application for distribution is denied.  