
    Matter of the Estate of Alexander Eychner, Deceased.
    
      (Surrogate’s Court, Oneida County,
    
    
      November, 1909.)
    Executors and administrators—Subjection of realty to payment of DEBTS AND LIABILITIES OF ESTATE—PROCEEDINGS TO SUBJECT REALTY-Time for application for sale—Lapse of time before letters.
    Lapse of time prior to the granting of letters upon the estate of a deceased person does not impair the right of one having a claim for funeral expenses to institute a proceeding for the sale of the decedent’s real property for the payment thereof at any time within three years after letters are granted, nor the right of those having judgment liens upon such real property at the time of the decedent’s death to participate in the proceeds of the sale of such property.
    Proceeding for the sale of decedent’s real estate for the payment of debts and funeral expenses.
    O. P. Backus, for John R. Jones; Frank 6. Baker, for Roscoe Eychner, administrator; J. P. Gubbins, for Roy Simith, Goodey Smith, Walter Simith, Marion Smith, Winfield Smith, minors.
   Sexton, S.

Alexander Eychner died October 4, 1892, intestate, leaving real estate, but no personal property. His son, Roscoe Eychner, October 7, 1892, paid the funeral bill of $59, and, on December 22, 1908, was appointed administrator of this estate. On December 30, .1908, said administrator petitioned this court for a decree directing the sale of the decedent’s, property for the payment of his debts and funeral expenses. The petition shows that the claims of three judgment creditors of the deceased, amounting to $1,160.05, were rejected by the administrator on the ground that they were barred by the Statute of Limitations. On the return of the citation, John R. Jones, a judgment creditor, by assignment, in the amount of $514.69, filed an answer, alleging that the claim of the administrator for $59 for funeral expenses was barred by the Statute of Limitations, and that his judgments by assignment were valid, liens upon the real estate for $514.69, and should be first paid. Jones’ claims were presented to and rejected by the administrator, but that fact does not deprive the surrogate of jurisdiction to determine the validity of the same in a proceeding to sell real estate to pay debts. Merchant v. Merchant, 25 N. Y. St. Rep. 268; Matter of Application of Haxtun, 102 N. Y. 157.

It is contended on behalf of creditors that the administrator cannot maintain this proceeding to pay his own bill for burying deceased, because it did not accrue within the six years preceding this application but did accrue in the year 1893, and is barred by the Statute of Limitations.

In Davis v. Garr, 6 N. Y. 124, the rule is laid down, that where the statute did not begin to run in the lifetime of the testator, it could not commence running until there was a personal representative, against whom a suit could be brought.”

This estate had no representative until December 30, 1908. Section 2750 of the Code of Civil Procedure provides for the maintenance of this proceeding, for the payment of the debts and funeral expenses of the deceased, at any time within three years after letters were first duly granted within the State, upon the estate of the deceased.” The claim that this proceeding is not maintainable by the administrator to sell the real estate to pay his funeral bill is therefore untenable in law.

One point remains. The administrator rejected the claims of all judgment creditors on the ground that the judgments were recovered prior to October 4, 1892, and are barred by the Statute of Limitations. Section 2749' of the Code provides, that Real property of which a decedent dies seized, * * * may be disposed of, for the payment of * * * judgment liens existing thereon at his death,” etc. Section 2750 of the Code provides, that “ At any time within three years after let-

térs were first duly granted within the State * * * any other creditor of the decedent * * * may present to the surrogate’s court, * * * a written petition,” etc., praying for the sale of sufficient real estate of decedent to pay his debts. Section 2749 of the Code authorizes the sale to pay judgment liens; and section 2750 of the 'Code prescribes the procedure for a judgment creditor and gives him three years after the appointment of an executor or administrator in which' to start the proceeding. An administrator in this estate was appointed December 22, 1908, at which time the three years’ limitation began to run and had not expired prior to the bringing of this proceeding. Hence it follows that this proceeding is maintainable and that the judgments owned by John R. Jones and the judgment of Elizabeth Owens in the amounts proved on the hearing are now valid liens upon the real estate described in the petition and entitled to be paid in full, with interest, in the order of their priority next after the claim of the administrator for funeral expenses and the expense of administration, and the costs and disbursements of this proceeding, which last amount will be fixed upon the presentation of the -decree of sale.

Decreed accordingly.  