In re the Estate of Coutant

This is an application for the distribution of certain surplus moneys, arising from the sale of real estate of which the decedent died seized, in an action brought to foreclose a mortgage thereon, and which moneys have been .paid into this court pursuant to a provision to that effect contained in the judgment entered in such action, and which was apparently intended to be a compliance with the directions of section 2798 of the Code of Civil Procedure. That section, however, is applicable only to real property liable to be disposed of as prescribed in the title of which it is a part, which is devoted the subject of the disposition of a decedent’s real property for the payment of debts and funeral expenses and distribution of the proceeds, and it is expressly provided' therein (section 2759) that a decree directing the disposition of such real property can be made only when, among other facts, it is established that the property directed to be disposed of was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, it is not practicable to enforce the charge, or execute the decree, and that the creditor has effectually relinquished tha same. I think that, under the terms of this decedent’s will,, the real property was subject to a valid, imperative power o£ sale for the payment of debts and funeral expenses, applying-the principles laid down in Matter of Gantert, 136 N. Y. 106, and as held in that case, that proceedings under sections 2749-2801 of the Code, for the sale of the decedent’s real estate to pay her debts, could not be maintained, and that this is not a case in which the surplus moneys in question should have been directed to be paid into-the Surrogate’s Court, or can be distributed under section 2799. I think the proper course for the petitioner to pursue is to apply to the Supreme Court by *532motion to amend its decree by striking out the provisions for the payment of the surplus moneys into this court, and directing that they be retened to that court. The application for distribution is denied.-

Application denied.