The Chancellor.
As it was expressly denied by Hooker that he was present at the sale, or ever authorized the auctioneers or any other person to bid upon the property for him or in his name, there is no pretence of claim against him. He was therefore very improperly made a party to this appeal. The order of the surrogate dismissing the petition as to him must be affirmed with costs [19]*19In this court to be taxed. And he is to be permitted to enrol the decree of affirmance and to take out an execution here to recover those costs.
The case as to the other respondents, and particularly as regards the administrator de bonis non, presents a great variety of questions, some of which I will now proceed to consider. In addition to the objection made by the counsel for the respondents, however, it may be proper to remark that the petitioner does not appear to be entitled to the benefit of the proceedings on the petition of Wilkins to the surrogate, presented on the 17th of November, 1835, and the supposed allowance of the estate of Ann Smyth of $10,000 by the surrogate upon the proceedings founded thereon; for it appears by the petition of the appellant, that he had purchased all of Wilkins’ interest in that judgment on the 9th of November previous. Wilkins, therefore, was not a creditor of the estate of C. Smyth, either in law or in equity on the 17th of November, and had no authority to institute proceedings to compel a sale of the real estate for the benefit of Butler. Even if the judgment for the benefit of Mrs. Smyth had been standing in his name as trustee, I am inclined to think the proceedings could not have been instituted in his name after he had assigned all his interest in the judgment to another. But as the judgment was in the name of T. Addis Emmett, the elder, and Wilkins, as administrator of his mother, was a mere cestui que trust, it is very evident that he had no right to institute such a proceeding in his own name after he had assigned all his beneficial interest in the judgment to Butler.
Again ; the judgment, if valid, was a subsisting lien, as against the heirs at law of the defendant therein, upon all the real estate of which the intestate died seized in the city of New-York, or elsewhere in this state. And I am in dined to think the objection is well taken, that a judgment creditor standing in that situation cannot institute proceedings before the surrogate to compel a sale of the real estate on which his judgment is a lien. The thirty-second section [20]*20of the title of the revised statutes, under which the proceedings were instituted, (2 R. S. 105,) declares in express terms, that every sale and conveyance made pursuant to the provisions of that title shall he subject to all charges by judgment, mortgage, or otherwise, upon the lands so sold existing at the time of the death of the testator or intestate. And it seems to follow as a necessary consequence that the mortgagee, or judgment creditor is not entitled to any part of the avails of the estate thus sold, to satisfy the incumbrance which still remains upon the land in the hands of the purchaser. Where the whole real estate to which the incumbrance extends is sold, there, perhaps, may be an arrangement made between the personal representative of the decedent and the bidders, at the sale under the surrogate’s order, that the incumbrance shall be paid off out of the amount of the bid ; so as to give the purchaser a clear title. But in that case the amount of the incumbrance to be paid must be ascertained and paid out of the purchase money, by the seller ; and the surplus only should be reported to the surrogate, and paid over to him, as the actual proceeds of the sale to be distributed among the creditors. Such an arrangement being a mere matter of convenience which the lien creditor has no right to insist upon, I do not see how he can, consistently with this section of the statute, either apply to the surrogate to compel a sale, or come in and prove his debt before the surrogate, for the purpose of having it paid out of the proceeds of the real estate on which it is a lien.
It is not necessary for the decision of this case to inquire whether the administratrix was authorized to apply for a sale of the real estate, before she had made and filed an inventory of the personal property,or a statement showing that none existed, duly verified in the form prescribed by the sixteenth section of the article of the revised statutes relative to the duties of executors and administrators in taking and returning inventories, (2 R. S. 85.) In every respect, except as to the form of the inventory and the manner of verification prescribed,sworn statement in the petition [21]*21on which the first order of sale was founded, that the decedent left no personal estate whatever which she had been able to ascertain or discover, answered all the purposes of an inventory. And if the surrogate had jurisdiction to grant the order, for the persons interested in the estate to show cause why the same should not be sold, the irregularity of making the order to sell before the six weeks notice was duly published in the state paper, was probably cured by the subsequent petition of the only surviving heir at law to appoint an administrator de bonis non to carry the sales which had taken place under that order into effect.
I do not understand, however, the heir as consenting to any subsequent sales, except such as had been authorized by the order of the tenth of March, 1834, and to satisfy debts which had been already ascertained and allowed. And I presume the order of the 8th of December, 1834, did not authorize the sale of any lands not specified in the previous order ; although there is no copy of that order in the surrogate’s return. The surrogate is required, in his order of sale, to specify the land to be sold. (2 R. S. 103, § 20.) And if there were no lands specified in the order of the 8th of December, then it is perfectly clear that the administrator de bonis non was only authorized under that order, to sell the lands specified in the previous order of the 10th of March, if any of them- still remained unsold. The administrator, however, acted upon the supposition that the order of the 8th of December authorized him to sell the lands purchased by Lowerre and others, in July, 1836; as his return to the surrogate shows that he sold them under that and the previous order, and not under the supposed order of the 5th of January, 1836, which was not entered until after that sale.
If the order of the 5th of January, 1836, was actually made at that time by the surrogate, and if he was then authorized to make such an order, he probably had the right afterwards to enter it nunc pro tunc, as of that date, if by any inadvertence it was not entered in the books of his office at the time it was made, I am satisfied, however, that [22]*22he had not jurisdiction and power to make such an order founded upon the petition of Wilkins.
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The Chancellor.
As it was expressly denied by Hooker that he was present at the sale, or ever authorized the auctioneers or any other person to bid upon the property for him or in his name, there is no pretence of claim against him. He was therefore very improperly made a party to this appeal. The order of the surrogate dismissing the petition as to him must be affirmed with costs [19]*19In this court to be taxed. And he is to be permitted to enrol the decree of affirmance and to take out an execution here to recover those costs.
The case as to the other respondents, and particularly as regards the administrator de bonis non, presents a great variety of questions, some of which I will now proceed to consider. In addition to the objection made by the counsel for the respondents, however, it may be proper to remark that the petitioner does not appear to be entitled to the benefit of the proceedings on the petition of Wilkins to the surrogate, presented on the 17th of November, 1835, and the supposed allowance of the estate of Ann Smyth of $10,000 by the surrogate upon the proceedings founded thereon; for it appears by the petition of the appellant, that he had purchased all of Wilkins’ interest in that judgment on the 9th of November previous. Wilkins, therefore, was not a creditor of the estate of C. Smyth, either in law or in equity on the 17th of November, and had no authority to institute proceedings to compel a sale of the real estate for the benefit of Butler. Even if the judgment for the benefit of Mrs. Smyth had been standing in his name as trustee, I am inclined to think the proceedings could not have been instituted in his name after he had assigned all his interest in the judgment to another. But as the judgment was in the name of T. Addis Emmett, the elder, and Wilkins, as administrator of his mother, was a mere cestui que trust, it is very evident that he had no right to institute such a proceeding in his own name after he had assigned all his beneficial interest in the judgment to Butler.
Again ; the judgment, if valid, was a subsisting lien, as against the heirs at law of the defendant therein, upon all the real estate of which the intestate died seized in the city of New-York, or elsewhere in this state. And I am in dined to think the objection is well taken, that a judgment creditor standing in that situation cannot institute proceedings before the surrogate to compel a sale of the real estate on which his judgment is a lien. The thirty-second section [20]*20of the title of the revised statutes, under which the proceedings were instituted, (2 R. S. 105,) declares in express terms, that every sale and conveyance made pursuant to the provisions of that title shall he subject to all charges by judgment, mortgage, or otherwise, upon the lands so sold existing at the time of the death of the testator or intestate. And it seems to follow as a necessary consequence that the mortgagee, or judgment creditor is not entitled to any part of the avails of the estate thus sold, to satisfy the incumbrance which still remains upon the land in the hands of the purchaser. Where the whole real estate to which the incumbrance extends is sold, there, perhaps, may be an arrangement made between the personal representative of the decedent and the bidders, at the sale under the surrogate’s order, that the incumbrance shall be paid off out of the amount of the bid ; so as to give the purchaser a clear title. But in that case the amount of the incumbrance to be paid must be ascertained and paid out of the purchase money, by the seller ; and the surplus only should be reported to the surrogate, and paid over to him, as the actual proceeds of the sale to be distributed among the creditors. Such an arrangement being a mere matter of convenience which the lien creditor has no right to insist upon, I do not see how he can, consistently with this section of the statute, either apply to the surrogate to compel a sale, or come in and prove his debt before the surrogate, for the purpose of having it paid out of the proceeds of the real estate on which it is a lien.
It is not necessary for the decision of this case to inquire whether the administratrix was authorized to apply for a sale of the real estate, before she had made and filed an inventory of the personal property,or a statement showing that none existed, duly verified in the form prescribed by the sixteenth section of the article of the revised statutes relative to the duties of executors and administrators in taking and returning inventories, (2 R. S. 85.) In every respect, except as to the form of the inventory and the manner of verification prescribed,sworn statement in the petition [21]*21on which the first order of sale was founded, that the decedent left no personal estate whatever which she had been able to ascertain or discover, answered all the purposes of an inventory. And if the surrogate had jurisdiction to grant the order, for the persons interested in the estate to show cause why the same should not be sold, the irregularity of making the order to sell before the six weeks notice was duly published in the state paper, was probably cured by the subsequent petition of the only surviving heir at law to appoint an administrator de bonis non to carry the sales which had taken place under that order into effect.
I do not understand, however, the heir as consenting to any subsequent sales, except such as had been authorized by the order of the tenth of March, 1834, and to satisfy debts which had been already ascertained and allowed. And I presume the order of the 8th of December, 1834, did not authorize the sale of any lands not specified in the previous order ; although there is no copy of that order in the surrogate’s return. The surrogate is required, in his order of sale, to specify the land to be sold. (2 R. S. 103, § 20.) And if there were no lands specified in the order of the 8th of December, then it is perfectly clear that the administrator de bonis non was only authorized under that order, to sell the lands specified in the previous order of the 10th of March, if any of them- still remained unsold. The administrator, however, acted upon the supposition that the order of the 8th of December authorized him to sell the lands purchased by Lowerre and others, in July, 1836; as his return to the surrogate shows that he sold them under that and the previous order, and not under the supposed order of the 5th of January, 1836, which was not entered until after that sale.
If the order of the 5th of January, 1836, was actually made at that time by the surrogate, and if he was then authorized to make such an order, he probably had the right afterwards to enter it nunc pro tunc, as of that date, if by any inadvertence it was not entered in the books of his office at the time it was made, I am satisfied, however, that [22]*22he had not jurisdiction and power to make such an order founded upon the petition of Wilkins. In addition to the objection that a judgment creditor could not apply for a sale of real estate on which his judgment was a lien, and that he had sold and assigned all his interest in the debt as cestui que trust before the presenting of that petition, as an original application by a creditor to compel the administrator to proceed and sell real estate not embraced in the former order of sale, and for the satisfaction of a debt not previously ascertained and allowed by the surrogate in the manner prescribed by the revised statutes, the application to the surrogate should have been made within three years from the time when the original letters of administration were granted to Ann Smyth, on the estate. (2 R. S. 108, § 48.) And it is not sufficient in such case, even when the creditor applies within the time prescribed by law, for him merely to cite the personal representative, to show cause why the application should not be granted. If the petitioner’s claim is founded upon anew debt not before allowed as valid, and if he seeks a sale of other portions of the estate which the executor or administrator has not been already authorized to sell, the surrogate, if no cause to the contrary is shown, must in the first place make an order for the persons interested in the estate to show cause why such sale should not be made, for the purpose of giving the heirs or devisees an opportunity of contesting the alleged indebtedness, or showing that a sale of the real estate is not necessary. And notice of such order must be duly published as upon an original application by the executor or administrator. (2 R. S. 108, § 50.) Here no such previous order or notice was given ; but the order of the 5 th of January is founded solely upon the withdrawal by the counsel of the administrator of his opposition to the claim of the petitioner. If the administrator was the general agent of the heir at law, and was authorized as such to appear and consent to a sale without such previous order or notice, the death of the heir at law, before any such consent was given by the counsel of the administrator, necessarily [23]*23revoked the agency and power. In this case, however, the administrator clearly never had any such power from the heir at law. At least there was nothing before the surrogate from which any such power could fairly and legally be inferred.
For these reasons I think the surrogate was right in the conclusion at which he arrived, that this sale was unauthorized ; that no conveyances which could be given by the administrator de bonis non, would be sufficient to protect these purchasers in the enjoyment of the premises. The appellant’s remedy, therefore, if this is a valid judgment, is to revive it in the name of the personal representative of the nominal plaintiff, with his assent, and to sell the real estate on execution ; or to come in before the vice chancellor upon the decree of foreclosure, which it appears has been entered there, and establish his claim to the surplus as against the people of the state to whom it is said the property now belongs by escheat. This is sufficient to dispose of the whole case upon this appeal, as the appellant has no claim to relief as against any of those whom he has made parties to these proceedings. It is not necessary, therefore, that I should examine and decide the question whether a surrogate has jurisdiction and power to compel the purchasers under a regular order of sale made by him to take the title and pay the purchase money. I think, however, there can be very little doubt that the decision of the judge a quo was right upon that point also.
The order appealed from must be affirmed, with costs, as to all the respondents who have answered the petition of appeal. And they are at liberty, after the decree of affirmance is enrolled, to take out their executions for costs in this court.