The appeal in this case is irregular, as all the parties who are interested in sustaining the decision of the surrogate are not before me. It appears by the transcript that Samuel Rea, the elder, left several heirs whose interest in the real estate sold by the administrators, in 1825, would be affected by the reversal of the order of the surrogate and a confirmation of the sale. Although Samuel Rea, one of the heirs, alone appeared and contested the case before the surrogate, it does not appear that the other heirs had notice of the order to show cause. They cannot, therefore, be considered as assenting to the order to confirm the sale. The appellant then should have made them parties, to his petition of appeal, as well as the respondent Samuel Rea, who has appeared and answered the same. The practice on that subject and the proper course to be adopted to bring all the proper parties before this court on the appeal, and to put the case in readiness for á hearing in case of their neglect to answer the petition of appeal, will be found by a reference to the 118th rule of this court, and in the cases referred to in the notes to that rule. But as the respondent who has appeared and answered did not raise that objection, I shall proceed to consider the case upon its merits, so far as his rights are concerned.
It is not necessary that I should express an opinion as to the objection that the surrogate could not malie an order of sale where the will of the testator had charged all his real estate with the payment of his debts, by authorizing *72his executors to sell so much thereof as might be necessary if the personal estate should be insufficient. That power in trust to the executors was probably an imperative power, which the court of chancery might have decreed the execution of, for the benefit of the creditors ; and which the court would not permit to fail for want of a trustee to execute the same. I am not prepared to say, however, that the existence of such a power, previous to the revised statutes, was wholly inconsistent with the right of the surrogate to make an order of sale, upon the application of the administrators with the will annexed, where the trustees of the power had renounced the trust. In the recent case of Austin v. Conklin, decided in the court for the correction of errors in December, 1840,1 had occasion to examine the provisions of the revised statutes and of the former laws of this state in relation to the powers of administrators with the will annexed. From that examination I became pretty well satisfied that such a trust power could not be executed by the administrator cum testamento annexo, previous to the adoption of the revised statutes. And the supreme court had decided in that case that the revised statutes gave him no such authority. (See Conklin v. Egerton’s adm’r, 21 Wend. Rep. 430. 25 Idem, 224.)
But I concur in opinion with the very learned and intelligent surrogate whose decision was appealed from, that the order of April, 1825, for the sale of the premises in question, was unauthorized, and that his successor was, on that ground, right in refusing to confirm the sale. That was not an order for a further sale to pay the balance of the original debts reported by the administrators when they applied for the first sale ■ for the balance remaining due upon the first sale, according to their sworn report, was only $275. Even if the original order therefore was not absolutely void, as to which, I express no opinion, the administrators were not entitled to a new order to sell another portion of the estate to pay new debts, if there were any such which had been discovered since the filing of their report of the first sale, without first making out and filing *73an account of such new debts, in the same manner as if it had been an original application. The order of March, 1823, to show cause why a further sale should not be made to pay the deficiency of $275, appears to have been abandoned. The petition which was presented two years after was, for every subsubstantial purpose, an original application, And it should have been accompanied by a proper account and inventory of the debts then existing, and the names of the persons to whom they were due, to authorize the surrogate to proceed, even if the right to institute such a proceeding had not been barred by lapse of time.
Again ; the administrators were required by the statute to make and file a statement of the debts, as far as they could discover the same, as soon as conveniently might be. And Chancellor Kent, in the case of Mooers v. White, (6 John. Ch. Rep. 360,) held that one year was a reasonable time for that purpose, unless special circumstances were shown to the surrogate to justify an application after that time. I will not say that in no conceivable case, under the former statute, the surrogate would be authorized to make an order where the administrators had neglected to make their application after the lapse of several years. But to justify the surrogate in making an order after such a lapse of time, the executors or administrators applying for the order must at least state in their petition that new debts, which were valid and subsisting claims against the estate, had recently been discovered. And if more than six years had elapsed they would also be bound to show that the debts were of such a nature that they were not barred by the statute of limitations. The administrators, in such a case, had no right to volunteer to pay debts which could not legally be enforced against them, or against the estate of the heirs at law, when the administrators had no assets in their hands. And if they did so, before the confirmation of the sale, and when they had no legal right to receive the purchase money, they did it in their own wrong and should themselves bear the loss.
*74The order appealed from mpst he affirmed with costs as. to the respondent Samuel Rea, who is made a party to thp petition of appeal and has answered the same. And as to every other person who had any interest in sustaining that order the appeal must be dismissed.