#### In re LAWRENCE’S ESTATE.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Claims against Decedent—Sale of Land—Rights of Devisees.

Code Civ. "Proc. § 2763, provides that land of a decedent shall be sold for debts “in the following order: * * * (3) Property which has been *727devised, and *has not*been sold by the devisee. (4) Property so devised which has been sold by the devisee.” *Held*that, where one of several devisees has sold the land devised to him, the land remaining in the hands-of the other devisees is not to be resorted to first, but tire statute means-that, in subjecting the share of any particular devisee, the part not sold by him shall be subjected before resorting to the part which he has sold.

Appeal from surrogate’s court, Wayne county.

Petition by Pliny D. Saxton for the sale of the real estate of Samuel Lawrence, deceased, to pay debts. From a decree directing a sale, William Mott and others appeal.

Affirmed.

Samuel Lawrence died in May, 1890, leaving his will, which was admitted to probate, July 21, 1890. By it he devised to his son, Isaac J. Lawrence, to whom letters testamentary were issued, a farm situated in Ontario county, consisting of 122 acres, appraised at the valuation of $6,025. He directed the executor to sell all the rest of his estate, real and personal, and out of the avails he bequeathed to him $4,000, in trust to invest the same, and pay the interest or income of it annually to his daughter, Mary Jane Werne, during her lifetime, if sufficient for her support, and, if not sufficient, to apply to the like purpose so much of the principal sum as should be necessary; and, on her death, he bequeathed whatever remained of the fund to her next of kin; and he devised and bequeathed the residue of his estate to his daughter, Mary J. Werne, and others named in his will. The testator died seised of a house and lot situated in the county of Wayne. This was of the appraised value of $2,000. In February, 1890, the son, Isaac J. Lawrence, made his note for $2,500, which was indorsed by the testator. The latter was afterwards charged with liability as indorser, and, at the time of his death, only $500 had been paid upon the note. His personal property was insufficient to pay his debts; and Pliny D. Saxton, the holder of the note, filed his petition in March, 1893, for the sale of the real property of which the testator died seised, for the payment of his debts. The surrogate directed that the Ontario farm be first sold, and, unless the proceeds of it were sufficient to pay the debts, that the premises in Wayne county then be sold for the like purpose. In December, 1890, Isaac J. Lawrence, by mortgage, conveyed the Ontario county farm to Philander Mott to secure the payment of $5,000. In May, 18Q1, he, by deed, conveyed that farm *to*Mary E. Lawrence, his wife. In July, 1891, he and his wife conveyed the farm to the Marine Bank, of Buffalo, N. *Y..*by mortgage, to secure the payment of $1,500; and in August, 1891, he and his wife by mortgage conveyed it to the Maryland Fertilizing Manufacturing Company, to secure the payment of $4,000. In July, 1891, he and his wife conveyed the house and lot in Wayne county to M. L. Balcom, as collateral security for certain notes made by him to Baldwin; and afterwards he and his wife, by deed, conveyed this Wayne property to Mary J. Werne. William Mott filed exception to the finding and conclusion of the surrogate that the premises in Ontario county should first be charged and sold for the payment of petitioner’s claim. George Mott filed no exception.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. K. Burnham, for appellants.

H. R. Durfee, for respondents Werne and Tuttle.

Charles McLouth, for respondent Saxton.

BRADLEY, J.

The appeal is from so much of the surrogate’s decree as directs that the farm in Ontario county be first charged with the payment of the debt due to the petitioner, and on the part of the appellants it is insisted that such direction is in violation of the statute, which provides:

> *728“Where the decree directs the sale of two or more parcels of real property, of which the decedent died seized, * * * the decree may direct the sale to be made, in the order which the surrogate deems just, unless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him or sold by his heirs; in which case the several distinct parcels must be sold in the following order: (1) Property which descended to the decedent’s heirs, and has not been sold by them. (2) Property so descended, which has been sold by them. (3) Property which has been devised, and has not been sold by the devisee. (4) Property so devised, which has been sold by the devisee.” Code Giv. Proc. § 2763.

The testator died seised of two parcels only of real property. As neither of them descended to Ms heirs, the first and second clauses of that section have no application to the present case. The farm in Ontario county was devised to the son, Isaac J. Lawrence. He, by mortgage, conveyed it to the appellant William Mott. For that reason it is urged that it is taken from the operation of the third clause, and comes within the fourth, and that it is not chargeable with the payment of the debts of the decedent until after the Wayne county premises have been sold, and the proceeds of the sale found to be insufficient to pay the debts. By the will the testator intended to give Ms daughter, Mrs. Werne, and her next of kin, the benefit of the Wayne property; and, for that purpose, he directed that it and all his estate other than the Ontario farm be sold, and the proceeds, to the amount of $4,000, be held by Ms executor, in trust as there directed, for Ms daughter and her next of kin. And although this direction to sell the Wayne property, for the purposes of the trust, was an equitable conversion of it into personalty, the daughter and her next of kin were made the beneficiaries of the will as to that property as effectually as if it had been devised to them. The grant of the house and lot by the executor to secure the payment of his debt was not within the power of sale given to him. The Ontario county farm, devised to the son, was conveyed by him, within the meaning of the statute; and the question arises whether it is entitled to such construction as to primarily charge the Wayne premises with the payment of the debts of the decedent. Such effect given to the statute would seem to work injustice, and, as the consequence, might charge the burden upon one of the several devisees, if he alone had not conveyed property devised to him, as he could then have only the personal liability of the other devisees for indemnity, and such remedy might be of no value for that purpose. The section referred to of the Code is a substitute for the previous statute, which provided that the order should specify the lands to be sold; and the surrogate might direct the order in which several tracts should be sold, and should order that the part descending to heirs be sold before that devised; “and, if it appear that any lands devised or descended have been sold by the heirs of devisees, then the lands remaining in their hands unsold shall be ordered to be first sold.” 2 Rev. St. p. 103, § 20. While the language of section 2763 of the Code may be susceptible of a construction somewhat different from that of the provisions of the Revised Statutes, it may be supposed that the intent was that it should, in its purpose and effect, be substantially *729the same. The fail1 and equitable construction of the statute would seem to be such as to import that the property referred to as devised, and not sold, is that remaining unsold of the particular devisee, who may have conveyed a portion only of the estate devised to him, and not that of the other devisees, who have not conveyed the property devised to them. This is a reasonable view of the construction of the statute, and was that taken of such provision of the Revised Statutes in Re Clark, 3 Redf. Sur. 225. Amy other construction of the present statute might, as has been observed, have the effect to primarily charge the entire debts of a decedent upon the property devised to one of several devisees. This it cannot be assumed was in the contemplation of the statute, nor does its language necessarily require a construction which may be pro-motive of such injustice in its practical operation.

There is a further consideration which equity will recognize as between the beneficiaries of the two properties. The debt upon which the petition is founded is that of Isaac J. Lawrence, the -devisee of the Ontario county farm. The liability of the decedent arose from his relation as accommodation indorser of the note by which the debt is evidenced. Upon equitable principles applicable to such relation, the property devised to Isaac J. Lawrence should be primarily charged with the debt in this proceeding; and, in the view taken of the statute, it was within the power of the surrogate to determine that the sale of the lands be made in the order directed by the decree. The decree of the surrogate should therefore be affirmed. All concur.