
    In the Matter of the General Assignment of Joseph J. Praetz as Executor of and Trustee Under the Last Will and Testament of Johh Praetz, Deceased, to Redmond Kersey, Jr., for the Benefit of Creditors.
    (Supreme Court, Kings Special Term,
    October, 1914.)
    Executors and administrators — not given power to carry on business of decedent—'When application by assignee for creditors for approval by court of sale of real estate denied.
    Where executors have not been given power to carry on the business of their decedent, an application by their assignee for the benefit of creditors for the approval of the court of his sale of the real estate of the decedent will be denied.
    
      Motion by assignee for benefit of .creditors for the approval by the court of his sale of real estate.
    George M. Schimzel, for assignee.
   Crane, J.

This is most decidedly a very unique proceeding. Two executors have made a general assignment for the benefit of creditors under the Debtor and Creditor Law. The assignment states that they have been doing business under the name and style of ‘ ‘ the Estate of John Praetz.” Executors and testamentary trustees are generally subject to the jurisdiction of the Surrogate’s Court. In Bankers Surety Co. v. Meyer, 205 N. Y. 219, it was held: “ Ordinarily, where the Surrogate’s Court has ample power to protect the rights of the parties by enforcing a just and proper administration of a decedent’s assets, the Supreme Court will not undertake the administration of his estate. But it is well settled that when a Surrogate’s Court with its limited jurisdiction is unequal to the task of grappling with special circumstances the Supreme Court will entertain jurisdiction and avoid a failure of remedy or a miscarriage of justice.” This is not such a case. Nowhere does it appear that the executors were given power to carry on business. If not, this court has no jurisdiction, and if they did have the power the debts subsequently accruing could not be collected out of the estate of the deceased to the exclusion of prior creditors. The powers and liabilities of executors continuing business are fully set forth in Willis v. Sharp, 113 N. Y. 586, and Redfield, Surrogate’s Court Practice (6th ed., sec. 611). The assignee for the benefit of creditors asks this court to approve his sale of real estate. If this be the real estate of the deceased a conveyance by the assignee, even with the approval of this court, would be absolately void. Beal estate of a deceased person cannot be thus disposed of for the benefit of creditors. But, even if this were the assignment of persons in their individual capacity, this court has no right to approve or disapprove sales except upon accounting or as provided in section 24 of Debtor and Creditor Law. The assignee is not an officer of this court.

Application denied.  