
    (29 Misc. Rep. 506.)
    In re QUATLANDER’S ESTATE.
    (Surrogate’s Court, Erie County.
    November, 1899.)
    Executors and Administrators—Sale oe Real Estate—Administration Expenses.
    Where an administrator received personal assets in excess of the debts and funeral expenses of, the deceased, the real estate cannot be sold to pay administration expenses, or any debts incurred by the administrator after the death of the intestate.
    Petition by the administrator of the estate of Ehrhardt Quatlander, deceased, to sell real property for the payment of debts of the estate. ■Objection by the petitioner to the confirmation of the report of the referee. Report confirmed.
    Charles D. S. Newton, for petitioner.
    Aaron Fybush, special guardian for infant.
   MARCUS, S.

The referee has reported adversely to the petitioner,

and the confirmation of his report has been objected to. It is conceded that the administrator received more money by several hundred dollars than was necessary to pay the debts and funeral expenses of the deceased. It is urged that the administration expenses should form part of the debts of the deceased; that the debts-of the administrator are neither lessened, nor his claim to compensation diminished, by the debts even exceeding the assets; and, since his services are performed for the benefit of those who may receive the estate, whether it is paid to creditors or distributees of the decedent, the administrator should be compensated for Ms services of administration. This is undoubtedly true, but it does not shadow the objection that this proceeding appears to be for the purpose only of selling the real estate for administration expenses, bic sale of the real estate will be ordered to pay administration expenses alone, or any debts incurred by an executor or administrator after the death of the testator or intestate, except funeral expenses. Seal estate cannot be sold to pay administration expenses. Where an executor or administrator has paid the debts of a decedent in excess of the personal assets of the estate, he will be subrogated to the rights of the creditors whose debts he has discharged. The admission of personal assets in excess of debts in this case disposes of the questions raised. The fact that the administrator has expended moneys in a manner unauthorized by law does not entitle him to have the real estate, which he sought to protect, now sold by proceedings in this court, where no debts against the decedent exist, for no debt can be said to exist when the administrator had sufficient personal property in his hands, when properly applied, to have discharged the same, at least in so far as the proceeding now sought to be enforced under the statute in question is concerned. The surrogate, therefore, has no jurisdiction to grant the prayer of the petitioner.

Referee’s report confirmed.  