In re Stewart

8 Mills Surr. 134, 71 Misc. 640, 130 N.Y.S. 1058

• Court: New York Surrogate's Court
• Decided: April 15, 1911
• Status: Published

Opinion

Ketcham, S.

There is no warrant for confirmation of a •sale of decedent’s lands for the payment of his debts. Former section 2776 of the Code of Civil Procedure, which required an order confirming the sale, was repealed, in 1904, by the act which reformed the practice relative to the sale of decedent’s lands. Laws of 1904, chap. 750.

It is not possible that a procedure thus deliberately excluded was impliedly preserved by the incidental reference which was unfortunately left in section 2774 of the Code. That section, in like manner, retained the provision that “ a freeholder appointed ’to execute the decree ” should not purchase at the sale, although the statute of 1904 left out the express direction, formerly contained in the Code, that a freeholder should be appointed. As well might it be argued that the present statute, by implication and accident, requires or permits the appointment of a freeholder to conduct the sale as that confirmation is required because the word “ confirmation ” escaped the process of revision.

Motion denied.