
    ZAHRT’S ESTATE.
    
      Surrogate's Court, Kings County;
    
    August, 1882.
    Distribution cte Surplus Monets.—Payment to Life Tenant.
    Upon a distribution of surplus moneys on foreclosure, in the surrogate’s court, under Code Civ. Pro., § 2799, where there is, under the will, a life-tenancy in the lands sold, the fund must be invested and the income paid until the determination of the life estate. The surrogate cannot order payment of a gross sum in lieu thereof.
    Proceedings for the distribution of surplus moneys arising upon a sale under foreclosure of certain lands belonging to John 0. Zahrf, deceased.
   Livingston, J.

This is an action under section 2799 of the Code, for the distribution of surplus moneys arising on the sale of real estate belonging to the deceased, under a judgment of foreclosure in the supreme court, which surplus has been paid into this court, and by this court paid over to the county treasurer, as directed by section 2537 of the Code. Tinder the will of the deceased, his widow became entitled to a life estate in said real estate, and the remainder was devised to her children, who are infants. The widow asks that the decree provide for the payment to her of a sum in gross representing the value of her life estate, under rule 71 of the general rules of practice applicable to all courts of record.

Section 2799 of the Code provides that the said surplus money shall be distributed by the decree as if it had been sold under the decree of the surrogate’s court to pay the debts of the deceased; and section 2793 provides that the surplus money arising on the sale of the deceased’s lands to pay his debts, and remaining after paying the expenses of , the proceeding in the surrogate’s court, satisfying the widow’s claim for dower, and paying the debts of the deceased, must be distributed among the heirs and devisees of the deceased, &c.; and section 2796 provides that where the interest in the property represented by such surplus consists of a precedent estate, and a remainder or reversion, the decree must provide, as the judgment of the supreme court would provide, in an analogous case, for the investment of the money in certain securities, and for the payment of the income until the determination of the temporary interest; and then for the payment of the principal, to the person or persons entitled thereto. It is unnecessary to discuss how far the rule of practice above referred to can be allowed to interfere with the rights and interests of infant devisees or legatees; it is sufficient to say that it was not intended to apply to cases where the distribution of the fund in court is expressly provided for by the statute (Banks v. Banks, 2 Supm. CT. [T. & C.] 483).

Here the statute points out what the decree must contain on the subject, and the rule cannot be invoked to authorize a departure from the terms of the statute. This same statute authorizes the payment to the widow of a sum in gross, in lieu of her right of dower in the fund to be distributed (§ 2793, subd. 3). And if the legislature had so intended, it no doubt would have made a similar provision in regard to the owner of a life estate. In Arrowsmith v. Arrowsmith (8 Hun, 606) the surrogate in his decree had adjudged that the husband’s life estate, as tenant by curtesy in the lands sold to pay the debts of the wife, was worth the sum of $1,110.69, and directed that that amount be paid from the proceeds of the sale to a judgment-creditor of the husband, and the balance, after deducting the expenses of the proceeding, to the heir-at-law of the intestate. The supreme court, at general term, in discussing the disposition which the surrogate was authorized to make of the surplus proceeds of sale remaining after the payment of the deceased’s debts and the expenses of the proceeding in his court, under chapter 150 of the Laws of 1850, which is revised in section 2796 of the Code, says :

“Under section 55 of the statute relating to the proceedings of the surrogate in such cases (3 R. S. 107) (5th ed. p. 116), and L. 1850, c. 150, he might order the investment of such moneys, on the ground that the respondent was entitled to the interest thereof during his life, but he could not pay them to him or to the heir, who would only have been entitled to the reversion of the land sold and represented by such money upon the termination of the life estate.”

See also what was said by the learned surrogate of Westchester county on the Matter of Igglessen (3 Redf. 375, 378). The statute expressly requiring that the surrogate’s decree in a case like this must provide for the investment of the fund, the payment of the income arising therefrom and the payment of the principle upon the termination of the life estate, the decree must conform to these directions. 
      
       Rule 71 of 1881, founded on Rule 76 of 1877, 85 of 1874.
     