
    ELLEN R. SLOCUM, Respondent, v. RICHARD ENGLISH and CALVIN ENGLISH, Appellants.
    
      Beal estate—when surrogate may direct the sale of—within what time proceedings must he instituted.
    
    To authorize the surrogate to direct the sale of real estate in payment of the debts of the deceased, the petition must be filed within three years after the granting of letters of administration upon his estate.
    Where letters of administration áre granted by the surrogate, and subsequently the administrators first appointed are removed and others appointed in their place, the petition must be filed within three years after the issuing of the first letters of administration.
    Appeal from a judgment rendered upon a trial at the Saratoga County Circuit, in June, 1873, before Mr. Justice Bookes, without a jury.
    
      The action was ejectment, and the question to be determined was the validity of certain proceedings had before the surrogate of Saratoga county, for the sale of the real estate of an intestate, for the payment of debts, by virtue of which the defendants claimed title.
    The plaintiff showed title as one of the heirs-at-law of Harvey Granger, deceased, who died August 1, 1846, seized in fee of the premises in question. It appeared that letters of administration were granted on the 2d of September, 1846; that the administrators Avere afterward removed, and other administrators were appointed da bonis non of said estate; that on the 2d of April, 1852, a creditor of the estate, upon application to the surrogate, obtained an order to show cause why the administrators should not be required to mortgage, lease or sell the real estate for the payment of debts. This order was served, and a further order obtained for all persons to appear, etc., on the 31st of May, 1852. Ho proof of service was made, and no further proceedings were had under this order. That, on the 2d of September, 1852, the surrogate revoked letters to John Granger,which left his associate, Dillingham, sole administrator. On the 3d of March, 1853, the administrator applied to sell the real estate, obtained the necessary order, and conveyed to one, under whom the defendant obtained title. The judge found in favor of the plaintiff. The defendants excepted, and, judgment having been entered, appealed.
    
      Paul F. Cooper, for the appellants.
    
      E. F. Bullard, for the respondent.
   Miller, P. J.:

It is quite plain, I think, that the sale, by the administrator, of the premises in controversy, was void, because the petition was not filed within three years, as required by the statute, after the granting of letters of administration, and that no title was acquired under the deed executed by him to the purchaser at the sale. The defendants’ counsel seeks to avoid the effect of the statute cited, by insisting that the petition by the administrator was but a continuation of the proceedings which had been previously instituted on behalf of a creditor, and not an original or new application within the provision of the statute cited.

It appears that a petition was presented hy a creditor for an order to show cause why the administrators should not mortgage, sell, or lease the real estate of the deceased for the payment of debts, and an order to show cause, made returnable at a day named. Upon the return day the surrogate made an order declaring that no cause had been shown, and directing all persons interested to appear at a future day to show cause, etc. There was no proof that said order was ever served, and no proceedings or adjournment- or further proceedings were had on said petition. Subsequently, the administrator filed a petition, and an order to show cause was made, and a sale directed to be made, which took place, and an order wTas made for the distribution of the proceeds. No reference is made in any portion of the proceedings to the previous proceedings by the creditor, and the record shows that it was a separate and distinct application, in no way. connected with, and entirely independent of, that which had previously been instituted by the creditor.

The proceeding by a creditor to compel an administrator to sell the real estate of the intestate, is entirely different and distinct, and is not perfected until the order for a sale is made, which should fully recite all that has been done, and show that the creditor was the moving party throughout. No petition is required from the administrator, and if he makes and presents one, independent of the proceedings had, and without reference to what had already been done, it cannot be considered as a part of the old proceeding. It is, perhaps, sufficient to say, in this case, that the administrator did not, by his petition, in any way act as if the proceeding was a part of what had already been done. He, as well as the surrogate, regarded it as new and distinct throughout, and there is no rule of law which could make a connection between the two, as none such exists. The old proceeding was ended and a new one commenced, and no attempt was made to conduct the latter otherwise than as an original proceeding. Even although the statute may have intended that the administrator could step in after the creditor had commenced, it appears that this was not done. As no recitals of previous proceedings were made in the petition or the orders, it is not necessary to consider what effect they might have had if they had been inserted. It is enough that the papers show an independent proceeding by the administrator, to establish that it had nothing to do with any other; and I think no presumption can be indulged in favor of their validity as the case stands. Nor does chapter 82 of the act of 1850 aid the defendants. It is not a mere irregularity, or omission, or defect in the papers which invalidates the proceedings, but a jurisdictional defect which strikes at its foundation. It is a failure to institute the proceedings within the time required by law, which is apparent upon their face, and in direct violation of the statute.

The counsel for the defendants insists that the sale was valid within the meaning of the statute. The statute provides that, after the executors or administrators shall have made and filed an inventory according to law,” * * * “ they may, at any time within three years after the granting of their letters,” etc., apply for authority to mortgage, etc.; and it is claimed that this refers to the time when the last letters were granted, and not to the first. In this case, the first administrators were removed and others appointed, and hence, it is contended that, as they applied within the three years, it was in season. I am inclined to think that this position cannot be upheld. The evident intention of the statute was that the sale should be applied for within three years after executors or administrators had taken out letters, and to compel them or their successors to institute the proceeding within this period, so that the estate might be closed up, and the title to real estate acquired from heirs-at-law, or by devise, might not be disturbed after the time provided for. If it were otherwise, then the time might be extended beyond reasonable limits, by the death or removal of executors or administrators and the appointment or others in their places. The words “ their letters testamentary or of administration,” have reference, I think, then, to such letters as may be first issued, and are not designed to refer to the successor or successors of those who are first appointed executors or administrators.

The statute means all executors or administrators who may take upon themselves, in the first instance, the duties of these offices, as a preliminary step to closing up an estate, and when another is appointed in the place of one who is deceased, or has been removed, he takes the place of his predecessor, with the estate and all proceedings remaining the same as if he had been originally appointed. It may also be observed that it would be inconsistent with the object of the statute to allow every new executor or administrator three years’ further and additional time to make an application for the sale of real estate, when a creditor can do so at any time after an accounting has been had.

The fact that no inventory had been filed prior to the filing of the petition, is also, I think, a jurisdictional defect, and sufficiently appears from the proceedings.

As I find no error upon the trial, I am of the opinion that the judgment at the circuit must be affirmed with costs.

Present — Miller, P. J., and Boardman, J.

Judgment affirmed, with costs. 
      
      2 R. S., 100, § 1.
     
      
      4 R.S. (Edmonds’ ed.), 499, §78.
     