Miller, J.
The respondents refused to complete their respective purchases upon a sale made by an order of the surrogate of the city and county of Eew York, upon the ground that the title to the premises was defective. The alleged defects relate 'mainly to the proceeding before the surrogate which it is claimed is invalid, so that no title could be acquired. By the will of the testator three legacies were bequeathed to certain persons who were therein named, which were directed to be paid out of the rents, issues and profits of the real and leasehold estate and made a specific charge upon said estate. These legacies had not been paid, and two of said legatees were not personally served with the surrogate’s order to show cause.
Upon this ground the General Term held that the purchasers were not bound to complete the sale, placing its decision upon the authority of
Jordan,
v.
Poillon
(N. Y. 518). The case cited was an action for the partition and sale of lands where the legatees were not parties, and hence were not entirely precluded from a presentation of their claim, and it was held that as the question as to the lien of the legacies could not be determined so as to be binding upon them, and the purchasers might be subjected to the expense and hazard of a litigation in another action, they were not bound to fulfill. The doctrine laid down in the opinion in the case cited we think is well founded and should be adhered to, but while the rule stated may apply to a case of partition sale, where all the parties in interest have not been made parties and are not precluded from asserting their rights at a future day, it has no application to a special proceeding where it is entirely apparent that there has been a substantial compliance with the requirements of the statutes under which it was taken, and that no claim can afterward be made. Under such a state of facts nothing more is demanded and the title acquired is perfect and complete. Whether the statute has been complied with in the case considered is the question now presented, and it is important, therefore, to examine the provisions of the statute relating to the subject so far as they affect the objections now urged. The statute requires that in a proceeding before the surrogate for the sale of real estate for the payment of debts, that an order to show cause shall be first made, and that the same shall be published for four weeks in a newspaper printed in the county, and that a copy shall be served personally on every person in occupation of the premises of which a sale is desired, and on the widow, heirs and devisees of the deceased residing in the county. (2 It. S., chap. 6, part 2, tit. 4, §§ 5 and 6.) The legatees referred to were not devisees and do not come within the. terms of the provisions cited, and a service upon them was not, therefore, required. It may be added that the rights of creditors are paramount to those of legatees, and although notice should be given them if required, and a failure to do so might, per
haps, affect the regularity and the validity of the proceedings, yet in this case it would seem that no injury could accrue, for if the sale is completed there will be amply sufficient means realized to cancel the specific legacies referred to after the payment of debts. It follows that there was no reason for relieving the purchasers upon the ground we have considered.
The objection is also urged that the surrogate had not jurisdiction to order more property to be sold than was necessary to pay the debts of the deceased.and necessary expenses, and that he exceeded his authority in directing a sale of all of said real estate of the testator. The authority of the surrogate as to what portion of the real estate shall be sold is derived from 2 Eevised Statutes (Edm. ed.), 107, section 19, which vests the surrogate with a discretionary power to determine where the real estate consists of houses or lots, or of a farm so situated that a part cannot be sold without manifest prejudice to the heirs or devisees, that the whole or a part thereof, although more than may be necessary to pay such debts, may be ordered to be sold, and if a sale of the whole real estate appears necessary, it may be ordered accordingly. The objection is that the surrogate’s order for the sale of the whole was made upon the ground that it appeared that a part of the deceased’s real estate cannot be sold without manifest prejudice to the heirs and devisees, and that it did not determine that a part thereof could not be sold without prejudice, and that this prejudice has reference to the situation of the premises. The surrogate held that the situation was in reference to the
interest
of the heirs and devisees. Whether the surrogate committed an error in this respect, it is not necessary to determine upon this appeal, for it was at most a defect or an irregularity of which the parties in interest alone could complain. He had jurisdiction of the subject-matter, and if any error was committed only the heirs and devisees could take steps to raise the question by a review of the order, and not having done so it is final and conclusive.
The views we have expressed are fully sustained by the provision of the statute (chap. 82, Laws of 1850, § 1), which declares
that sales made by the order of the surrogate under the ¡Revised Statutes and the acts amending the same, shall be deemed to be as valid and effectual as if made by a court of original general jurisdiction, and that the title of a purchaser shall not be impeached by reason of any omission, error, defect or irregularity in the. proceedings, or by an allegation of a want of jurisdiction on the part of the surrogate except in the manner and for the causes that the same should be impeached and invalidated in case such sale had been made pursuant to an order of the court of original general jurisdiction.
"Under this provision the surrogate’s order, which was clearly within his jurisdiction, must be regarded, so far as the purchaser is concerned, as within his authority. If he has jurisdiction the purchaser is protected. If he has committed an error, the parties in interest can appeal, and if they fail to do this the order becomes a judgment of a court of original jurisdiction, and is an absolute decree that a sale shall be made. The purchaser has nothing to do with the question whether the evidence authorized the order of the surrogate. In accordance with this view this court has recently held that the purchaser, upon a foreclosure sale, cannot object to completing a purchase upon the ground that the real estate was sold together and not in parcels.
The objection urged, that the sale made was in excess of the debts, is of a similar character as that last considered, and for the reasons stated is not, we think, available to the purchasers upon a motion made to set aside the sale.
' In regard to the claim made, that the decree in legal effect directs a sale of different parcels in accordance with the numbers, we think it will bear no such construction, and it is quite obvious that the numbers were merely intended to designate the different parcels of the real estate, and nothing beyond this.
¡¡STor were any steps required to be taken especially with a view of precluding the issue of Theresa Dolan in case she should die before her mother, leaving issue.
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Miller, J.
The respondents refused to complete their respective purchases upon a sale made by an order of the surrogate of the city and county of Eew York, upon the ground that the title to the premises was defective. The alleged defects relate 'mainly to the proceeding before the surrogate which it is claimed is invalid, so that no title could be acquired. By the will of the testator three legacies were bequeathed to certain persons who were therein named, which were directed to be paid out of the rents, issues and profits of the real and leasehold estate and made a specific charge upon said estate. These legacies had not been paid, and two of said legatees were not personally served with the surrogate’s order to show cause.
Upon this ground the General Term held that the purchasers were not bound to complete the sale, placing its decision upon the authority of
Jordan,
v.
Poillon
(N. Y. 518). The case cited was an action for the partition and sale of lands where the legatees were not parties, and hence were not entirely precluded from a presentation of their claim, and it was held that as the question as to the lien of the legacies could not be determined so as to be binding upon them, and the purchasers might be subjected to the expense and hazard of a litigation in another action, they were not bound to fulfill. The doctrine laid down in the opinion in the case cited we think is well founded and should be adhered to, but while the rule stated may apply to a case of partition sale, where all the parties in interest have not been made parties and are not precluded from asserting their rights at a future day, it has no application to a special proceeding where it is entirely apparent that there has been a substantial compliance with the requirements of the statutes under which it was taken, and that no claim can afterward be made. Under such a state of facts nothing more is demanded and the title acquired is perfect and complete. Whether the statute has been complied with in the case considered is the question now presented, and it is important, therefore, to examine the provisions of the statute relating to the subject so far as they affect the objections now urged. The statute requires that in a proceeding before the surrogate for the sale of real estate for the payment of debts, that an order to show cause shall be first made, and that the same shall be published for four weeks in a newspaper printed in the county, and that a copy shall be served personally on every person in occupation of the premises of which a sale is desired, and on the widow, heirs and devisees of the deceased residing in the county. (2 It. S., chap. 6, part 2, tit. 4, §§ 5 and 6.) The legatees referred to were not devisees and do not come within the. terms of the provisions cited, and a service upon them was not, therefore, required. It may be added that the rights of creditors are paramount to those of legatees, and although notice should be given them if required, and a failure to do so might, per
haps, affect the regularity and the validity of the proceedings, yet in this case it would seem that no injury could accrue, for if the sale is completed there will be amply sufficient means realized to cancel the specific legacies referred to after the payment of debts. It follows that there was no reason for relieving the purchasers upon the ground we have considered.
The objection is also urged that the surrogate had not jurisdiction to order more property to be sold than was necessary to pay the debts of the deceased.and necessary expenses, and that he exceeded his authority in directing a sale of all of said real estate of the testator. The authority of the surrogate as to what portion of the real estate shall be sold is derived from 2 Eevised Statutes (Edm. ed.), 107, section 19, which vests the surrogate with a discretionary power to determine where the real estate consists of houses or lots, or of a farm so situated that a part cannot be sold without manifest prejudice to the heirs or devisees, that the whole or a part thereof, although more than may be necessary to pay such debts, may be ordered to be sold, and if a sale of the whole real estate appears necessary, it may be ordered accordingly. The objection is that the surrogate’s order for the sale of the whole was made upon the ground that it appeared that a part of the deceased’s real estate cannot be sold without manifest prejudice to the heirs and devisees, and that it did not determine that a part thereof could not be sold without prejudice, and that this prejudice has reference to the situation of the premises. The surrogate held that the situation was in reference to the
interest
of the heirs and devisees. Whether the surrogate committed an error in this respect, it is not necessary to determine upon this appeal, for it was at most a defect or an irregularity of which the parties in interest alone could complain. He had jurisdiction of the subject-matter, and if any error was committed only the heirs and devisees could take steps to raise the question by a review of the order, and not having done so it is final and conclusive.
The views we have expressed are fully sustained by the provision of the statute (chap. 82, Laws of 1850, § 1), which declares
that sales made by the order of the surrogate under the ¡Revised Statutes and the acts amending the same, shall be deemed to be as valid and effectual as if made by a court of original general jurisdiction, and that the title of a purchaser shall not be impeached by reason of any omission, error, defect or irregularity in the. proceedings, or by an allegation of a want of jurisdiction on the part of the surrogate except in the manner and for the causes that the same should be impeached and invalidated in case such sale had been made pursuant to an order of the court of original general jurisdiction.
"Under this provision the surrogate’s order, which was clearly within his jurisdiction, must be regarded, so far as the purchaser is concerned, as within his authority. If he has jurisdiction the purchaser is protected. If he has committed an error, the parties in interest can appeal, and if they fail to do this the order becomes a judgment of a court of original jurisdiction, and is an absolute decree that a sale shall be made. The purchaser has nothing to do with the question whether the evidence authorized the order of the surrogate. In accordance with this view this court has recently held that the purchaser, upon a foreclosure sale, cannot object to completing a purchase upon the ground that the real estate was sold together and not in parcels.
The objection urged, that the sale made was in excess of the debts, is of a similar character as that last considered, and for the reasons stated is not, we think, available to the purchasers upon a motion made to set aside the sale.
' In regard to the claim made, that the decree in legal effect directs a sale of different parcels in accordance with the numbers, we think it will bear no such construction, and it is quite obvious that the numbers were merely intended to designate the different parcels of the real estate, and nothing beyond this.
¡¡STor were any steps required to be taken especially with a view of precluding the issue of Theresa Dolan in case she should die before her mother, leaving issue.
The fifth clause in the will of the testator devises to the executors the residue of his real estate in trust, to apply the rents
as directed, during the life-time of his wife, for the support of his family and the payment of legacies, and directs that upon the death of his wife that they shall convey to such of his children as shall be then living, or to their lawful issue then surviving as stated, and to Theresa Dolan, Ho. 240 Seventh avenue, being the sixth parcel described in the decree. It is said that none of the executors, as devisees in trust, were served with the order of the surrogate to show cause. The answer is, that they were adult parties, have petitioned for the sale, taken part in all the proceedings, and thus not only knew but acquiesced in what was done. The executors and trustees could not very well, in the orderly conduct of the proceeding, have served upon themselves, as trustees or otherwise, and, we think, are in no position to object upon any such ground, or to question the title of the purchaser. They represent the
cestuis que
trust, and Theresa Dolan having been served with the order, the parties in existence have been notified so that it is not apparent how unborn children can, under any circumstances, have any claim or right. The real estate is liable for the payment of the debts of the testator, and the devisees take subject to such liability, and when they are notified, so far as is practicable in accordance with the statute, there is no ground for claiming that the unborn children can afterward assert any right. Any other rule would prevent a sale for the payment of debts in a case where by some contingent or remote possibility there might be other devisees besides those living at the time. This, clearly, was never intended, as it would set creditors at defiance and. prevent an appropriation of an estate for the payment of the debts of the deceased. The rights of such unborn devisees, if any exist in such a proceeding, can be fully protected upon the distribution of the surplus remaining after the debts are paid, when the court can see that such interests as they may have are properly cared for.
It is also insisted that two of the executors named in the will who have not qualified should have been served with notice as devisees, and that they are still vested with and retain an interest in and are responsible for the trust estate. This
objection was not taken before the surrogate, and the only point raised was that the executors as trustees are devisees, but are not included in the petition and were not served with the order to show cause, as such devisees. If the objection had been presented to the surrogate in the first instance, for any thing that is made to appear, it might have been obviated by showing that these persons were deceased, or that they had renounced, or that they may have been deemed, by the surrogate, to have renounced under the statute (2 R. S., §§ 9, 10, 12, pp. 70 and 71.) 27o rule is better settled than that, in case the objection can be obviated, the question cannot be raised for the first time in an appellate tribunal.
As the persons named did not qualify, the presumption is that letters testamentary were issued to the other executors, and the former are thereupon under the statute to be deemed to be superseded thereby. (2 R. S., § 15, p. 71.) It should also be noticed that the will itself directs that only such executors named as may qualify shall be deemed executors. This objection is clearly without force.
We discover no objection to the order in directing a conveyance of the right, title and interest which the testator had at the time of his decease. This was all which could be sold, under the statute, and in the absence of proof of any defect of title, or a failure to show that a good title did not exist, furnishes no reason to the purchaser for refusing to take a deed.
The objection that the petition only asked for a sale, instead of permission to mortgage, lease or sell, is sufficiently answered by the fact that it appears from the petition, that a mortgage or lease would fail to accomplish the purpose intended. ISTor is there any foundation for the claim, that the premises being charged with the payment of legacies, were in effect charged with the payment of debts. A legacy is not a debt, and when charged upon the land, it does not stand in the same position as a charge for the payment of debts. Some other objections are urged which are of a technical character, but as far as they are material, are so fully answered in the opinion of the surrogate, that an examination of them in detail is not required.
Most of the objections which we have discussed were not of a jurisdictional character, but rather relate to the form of the proceeding and cannot impair its validity. With some exceptions which have been stated, we think they are covered by the provisions of section 4. (3 R. S. [6th ed.] 114.)
The order of the General Term should be reversed, and that of the surrogate affirmed, with costs.
All concur, except Rapallo, J., absent.
Ordered accordingly.