#### Matter of the Estate of Maria Van Vleck, Deceased.

(Surrogate’s Court, New York County,

August, 1900.)

1. Surrogate’s Court — Sale of land for debts — Delay in issue of citation.

A proceeding to sell the land of a decedent for the payment of her debts, begun within three years from the issue of letters by the filing of a petition, does not lapse because of the failure, for more than four years thereafter, of the moving parties to procure the issue of a citation.

2. Will — Debts not charged on realty.

A will, which contains no reference to debts or creditors beyond a provision that “ after the payment of my debts and funeral expenses I give, devise,” etc., and which contains no power of sale, does not charge the debts of the testatrix upon her real estate.

Proceeding to sell land for the payment of debts.

Ritch, Woodford, Bovee & Wallace, for petitioners.

Ladislas Karge, for Charles H. Hyde and others.

John A. & A. S. Mapes, for George Punchard.

Arnow *&*Cryer, for George H. Kitchen and others.

George W. Dunn, in person.

Thomas W. Peyton, in person.

Thomas, S.

Proceeding to sell land for payment of debts. Decedent died May 14, 1892. Letters were issued to her executors January 25, 1893. The petition in this proceeding was filed January 24, 1896; a citation was' not issued until April 5, 1900, and was served upon some of the parties within sixty days thereafter. Subsequently supplemental citations were issued and served, and on the return day of the final supplemental citation, the service of citation being now complete, an application is made *420on behalf of certain of the respondents claiming title to the land, to dismiss the proceeding. As a just ground for this motion it is insisted that the proceeding was not commenced within three years after the granting of letters, and that the court is, therefore, without jurisdiction. Code Civ. Pro., § 2750. This objection cannot prevail for the reason that the proceeding was duly commenced before the expiration of the three years by the filing of the petition. Code Civ. Pro., § 2751. The provision contained in that section requiring the citation, when issued, upon the petitioner, to be served within sixty days thereafter, does not render the proceeding null for failure to issue the citation promptly on the filing of the petition. Matter of Bradley, 70 Hun, 104, 109; Matter of Phalen, 51 id. 208. It is next contended that under the will of the decedent her debts are expressly charged upon her real estate, and that the remedy of the creditors must be in the Supreme Court to enforce this charge. I do not so construe the will. The only mention of debts or creditors contained' in the will is found in the first paragraph, which is to the effect that “ after the payment of my debts and funeral expenses, I give, devise and bequeath,” etc. Mo power of sale of any kind is found in the instrument. This does not create any charge, though the decedent may have had in mind the fact that the legal remedy now invoked prevented her from defeating the claims of her creditors. Matter of City of Rochester, 110 N. Y. 159; Clift v. Moses, 116 id. 144; Matter of Powers, 124 id. 361; Matter of Gantert, 136 id. 106. The questions as to whether the aggregate valid claims against the estate exceed the amount of personalty properly applicable thereto, or whether any of the personalty has been improperly applied or used, and to what extent, and the amount of debts for which the estate is liable, and whether some of the debts are barred by the Statute of Limitations, must all be determined by the referee. The usual order of reference may be submitted and settled upon notice.

Decreed accordingly.