It is the ordinary practice to grant orders for citations without any careful scrutiny into the merits of the application, deferring it until the return day. But where one of an extraordinary character, like the one in question, is presented, it is better to make the examination at once, and, if it shall appear not to be meritorious, to deny it at the outset, and thus save the parties needless expense.
If this is to be regarded as of the nature of an application by the administrator for an order to sell real estate to pay debts, the petition is defective in not containing a description of all of the real estate of which the deceased died seized, etc., as required by subd. 4, § 2, 2 R. S., p. 100; it appearing from the proceeding had in this court, and referred to in the petition, that the mother of Mary Ann died seized of other real estate, of a share of which the latter also died seized as one of the devisees, situate at Tremont, and which wras not sold in that proceeding because the proceeds of the sale of the Mount Vernon lot proved to be more than sufficient to pay all debts.
The papers in the proceedings to prove Mary Igglesden’s will show that Mary Ann was, in 1872, sixteen years of age, so that at the time of her death, in 1875, she was still a minor, and it was the duty of her father to have paid her doctor’s bill and funeral charges, and *378she was not. competent to contract a debt of any sort that would be binding upon her estate.
Besides, the reversionary interest in the fund belongs to the two brothers, one of whom is a minor. It has not lost its character as real estate and they are not seized of it, but have only an expectant estate therein; and neither this nor the Supreme Court has any power to direct the sale of such an estate. (Jenkins v. Fahey, 11 Hun., 257.)
The first section of chap. 150, Laws of 1850, provides, among other things, that when any surplus moneys arising from a sale of real estate to pay debts, shall belong to any person who has a temporary interest therein, and the reversionary interest belongs to another, the Surrogate shall order it invested, and make such order for the payment of interest and the principal thereof, as the Supreme Court is authorized and required by law to make in analogous cases. The next section directs how' the investments shall be made, the securities kept, etc. I apprehend that all the Supreme Court could do in such a case would be to direct the payment of interest on the fund to the father for life, and, at his death, the principal to the heirs-at-law of his deceased daughter. That is precisely what this court did.
Having thus complied with the statute referred to, my functions are ended, except only in so far as investing and paying are concerned. I am not aware of any statute or rule of law conferring on me the power I am asked to exercise.
If the claims against the deceased are valid, the remedy, I think, may be found in a proceeding to sell her interest in the property situated at Tremont.
. For these reasons this application must be denied.
Ordered accordingly.