The demurrer that the complaint did not state facts sufficient was properly sustained. On petition by an administrator of an intestate the Surrogate’s court may make a decree empowering him to sell real estate of the intestate to pay debts and funeral expenses; and thereupon, but after first filing in the said court his bond with two sureties, in a penalty to be fixed by the Surrogate, for, the faithful per formance of his duties, he shall have the same power of sale of such real estate as if he were acting as executor under a will of the decedent containing a power of sale of real estate to pay .debts and funeral expenses (Code Civ. Pro. §§ 2750 et seq.). Until such decree has been made, and he is under the sanction of such bond, he has no power to make a contract of sale. If he make one it is void.
The interlocutory judgment should be affirmed.'
Woodward, Hooker, Rich and Miller, JJ., concurred.
Interlocutory judgment affirmed, with costs.