
    Matter of the Estate of Charles Gedney, Deceased.
    (Surrogate’s Court, New York County,
    December, 1899.)
    1. Surrogate’s Court — Distribution of proceeds of partition action.
    A judgment, in an action in the Supreme Court to partition real estate of a decedent, directing the proceeds to be deposited in the Surrogate’s Court for distribution, affords the latter court sufficient authority to distribute the fund.
    2. Same — Rights of creditors,' parties to partition action.
    Where the said judgment also establishes the claims of certain creditors of the decedent, they may be paid by the surrogate out of the fund in court, although an application to sell the real estate of the . decedent is pending; but a sum, which will satisfy the balance of the claims, should be reserved in the event of its being duly .ascertained that the funds in the hands of the executor are not available to pay said balance.
    3. Same — Sale of real estate for debts.
    The proceeding to sell the real estate should not be dismissed.
    Application to sell real estate of decedent and also application to distribute the surplus arising under a sale in partition of the real estate of said decedent.
    John E. Meyer (Charles A. Deshon, of counsel), for petitioner.
    Thomas E. Stewart, for executor.
    Muller, Holt & Duross, for creditors, opposed.
   Varnum, S.

The judgment of the Supreme Court in the partition suit which directed the proceeds of the real estate sold therein to be deposited in this court for distribution is sufficient authority for the distribution of such proceeds by the surrogate. Code Civ. Proc., § 1538. That judgment also recognized and established the validity of the claims of certain creditors therein designated who are parties to this proceeding, and their right to-have such proceeds applied toward the payment of their claims. The. moneys in the hands of the executor resulting from the property sold by him under the power of sale given by the will of the decedent is also primarily or proportionately so applicable,, but it cannot be directed to be so applied or distributed in this proceeding. This, however, need not prevent the payment of the claims mentioned out of the moneys now in court, so far as they are applicable to the purpose, reserving thereout a sum sufficient for the satisfaction of the balance of the claims in the event of its being ascertained upon the accounting of the executor or in some other appropriate proceeding that the funds in his hands are not available for the payment of such balance. I do not see that it makes any material difference whether the proceedings begun to dispose of the real estate which was subsequently sold and the proceeds of which are referred to herein are dismissed or not. Whether the moneys to be now distributed are to be considered as being distributed in an independent proceeding or in the proceeding sought to be dismissed, the judgment of the Supreme Court is a binding and effective determination for the distribution of the moneys by the surrogate and of. the right of participation therein of the claimants mentioned. I, therefore, see no occasion for dismissing the proceeding brought to dispose of the real estate. The party asking such dismissal is allowed to intervene in such proceeding, although it is not apparent what practical utility can result from such intervention in view of the determination which I have hereinbefore made. In making such determination I have' taken into consideration the amended answer of the party asking such dismissal, and have permitted the same to be filed.

Decreed accordingly.  