
    Arthur W. Palmer, as Guardian, etc., Resp’t. v. Noyes E. Palmer, Individually and as Administrator, etc., App’lt.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Filed April 14, 1896.)
    
    Executor—Disputed claim.
    - A personal claim by an administrator against the estate of his decedent: cannot be determined on motion, in an action for partition of decedent’s-land, to direct a referee to take proof thereon, but must be determined by the surrogate in the regular course of adminstration.
    Appeal from an order denying a motion to modify an interlocutory judgment.
    William E. 0. Mayer, for app’lt; Cyrus Y. Washburn, for resp’t.
   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 appelant 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 threevears 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 the mode provided by law. Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884, 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 claims 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 particular force to 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 thei 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 $10 costs and disbursements, ' ' '

All concur.  