#### Matter of the Estate of Emily T. Coutant, Deceased.

(Surrogate’s Court, New York County,

July, 1898.)

Surrogate’s Court — Surplus moneys, on a foreclosure of property subject to a power of sale to pay debts and funeral expenses, should be retained in the Supreme Court.

Where real property of a decedent, which is subject to a valid imperative power of sale for the payment ■ of her debts and funeral expenses, is sold upon a foreclosure, in the Supreme Court, of a mortgage upon the premises, any surplus moneys should be retained in the Supreme Court, instead of being paid into the Surrogate’s Court under section 2798 of the Code of Civil Procedure, as the Surrogate’s Court cannot distribute the moneys, since, under such circumstances, proceedings could not be maintained under title 5 of chapter 18 of the Code of Civil Procedure, to sell the real estate of the decedent to pay her debts.

Application for the distribution of surplus moneys arising from the sale of. decedent’s real estate in an action of foreclosure, and which moneys have been paid into this court, pursuant to a provision contained in the judgment entered in said action.

Wendt, Berry *&*Edson, for petitioners.

Joseph C. Levi, Joseph Oscano, J. J. Britton, Boese *&*Carhart, for other next of kin.

Arnold, S.

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 he 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 he disposed of as prescribed in the title of which it is a part, which is devoted to 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 *351(§ 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 the same. I think that, under the terms of this decedent’s will, the real property was subject to a valid imperative power of 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 motion to amend its decree by striking out the provisions for the payment of the surplus moneys into this court, and directing that they be returned to that court. The application for distribution is.denied.

Application denied.