The petitioners apply, as creditors of the intestate, for the sale of his real estate for the payment of his debts. Letters of administration were issued, March 15, 1849, and the accounts of the administrators were duly settled before the Surrogate, March 12, 1851. There not being sufficient personal assets to pay the debts, the present proceeding was instituted, January 7,1852. The real estate described in the petition as the property of which the intestate died seized, is the undivided fourth-part of several lots of land in the city of New York. On the return of the order to show cause, the administrators set up in bar of the application, that after the death of the intestate, one of the tenants in common of the premises in question instituted a suit in partition in the New York Common *161Pleas, to which the administrators, the widow, and the heir at law of the intestate were made parties; that the proceedings were regularly conducted, to a decree, the premises sold at public auction, deeds given to the purchasers, and the proceeds of sale distributed between the heir at law and the widow, under the direction of the Court. This state of facts presents the question, whether a sale in partition, under the decree of a Court of competent jurisdiction, of premises in which the intestate had an undivided interest, has the effect of cutting off the right of creditors to have the real estate of the deceased sold for the satisfaction of his debts. There is no controversy that the deceased died seized of certain real estate, and that it must be sold for the payment of his debts, unless a superior title has been acquired by other parties. If there are other parties besides the heir, interested in the estate of which the deceased died seized, they should have, and will have, an opportunity of being heard. If there are no such parties, then there is no pretence of an answer to this application. But I do not think it competent for the administrators to raise that point. They have nothing to'do with the real estate. They are merely the formal medium through which the rights of creditors may be enforced against the real estate; but they have no interest in the premises, do not represent the heir or the purchasers, and cannot interpose any defence in their behalf. They may refuse to set on foot proceedings to sell the lands of the deceased for the payment of his debts, and if measures to that end are taken by creditors, they may, on the return of the order to show cause, decline acting, in which case the Surrogate is authorised to appoint a disinterested freeholder to act in their stead. If, on the return of the order to show cause, it appears “that all the personal estate of the deceased, applicable to the payment of his debts, has been applied to that purpose, and that there remain debts unpaid, for the satisfaction of which a sale may be made,” the Surrogate is bound to issue the second order, requiring “ all persons interested in the estate” *162to shew cause why the real estate should not he mortgaged, leased or sold. On the ascertainment of the insufficiency of the personal estate, the Surrogate “shall” issue the second order; and, till the return of that order, there is no discretion vested in him (§§ 8, 54.) I think, therefore, it will be time enough to consider the question raised by the administrators, as to the effect of the sale in partition, when the parties in interest come before me and insist upon their title. It would be improper for me to express an opinion at this stage of the proceedings, when the real parties in interest have not yet had an opportunity of being heard. By the terms of the statute it will be competent hereafter for the “ heirs,” or “any person claiming under them,” and “all persons interested in the estate, who shall think proper to oppose,” to interpose a defence, and insist upon any proper legal bar to the application. It is not the business or right of the administrators to anticipate such objections—to assume a defence, and claim its decision at this preliminary step. They have discharged their duty in placing before the Court the facts which show there are other parties in interest besides the heir and the widow, and though the statute does not require notice of the next order to shew cause, to be served personally on persons claiming an interest in the premises under the heir, yet, whenever it appears that lands have been sold, either by the heir, or under the decree of a court, such service is very proper, and should be required by the Surrogate.
An order must therefore issue, directing all persons interested in the estate to appear and shew cause why authority should not be given to the administrators to mortgage, lease, or sell so much of the real estate of the intestate as shall be necessary to pay his debts, and a copy of the order must be served on the parties who became purchasers at the sale in partition, so as to afford them an opportunity of contesting the application.