U. S. Life Insurance v. Jordan

The Surrogate.

In Ferguson v. Broome (1 Bradf., 10), Judge Bradford, after holding that there was no limitation of time when a creditor should apply for the sale of the decedent’s real estate, says: “ I feel com-polled, therefore, in all proceedings instituted by creditors, to require that the application be made within a reasonable period, and wherever there has been unreasonable delay beyond the period of three years, to refuse the order for the sale of real estate.” In that case, there had been a delay of twelve years, and the learned Surrogate held that the petitioner had not sufficiently shown the delay to have been reasonable. And I am inclined to hold, with him, that “unless some limit be imposed upon the exercise of this power, the hidden lien of the creditor will continue to run until he thinks fit to enforce it, while, in the meantime, those to whom the estate has descended are uncertain of their rights, and are restrained in the enjoyment of their property,” and “that public policy requires that a power of such formidable import should be strictly construed.” This view is confirmed by the time limited by section 2750, above cited. ' '

By Laws 1880, ch. 245, § 3, subd. 2, it is provided that the repeal effected thereby does not affect any right, defense or limitation lawfully accrued or established before that act took effect; and that every such right remained as valid and effectual as if said act had not been passed, but that said subdivision did not apply to a case provided for in chapter 4 of the Code of Civil Procedure. To the same effect is section 3352 of the new Code. Hence, if the petitioner’s “right” to petition in this matter had “lawfully accrued,” when title 5 of chapter 18 took effect, to wit: September 1, 1880, the limitation contained in section 2750 does not apply ; for it is clear to my mind that chapter 4 does not apply to such proceedings, either in terms or intent. I am confirmed in this opinion by the fact that the act of 1837, as amended, was not repealed by Laws 1877, ch. 417, but was repealed by the act of 1880, above cited.

But an examination of Laws 1837, ch. 460, § 72, as amended by Laws 1843, ch. 211, being § 60 of 3 R. S. (6 ed.), 117, shows that the right of a creditor to apply for such sale was dependent upon the fact that the executor or administrator, as such, had accounted to the Surrogate pursuant to chapter 6, part 2, title 3 of the Revised Statutes, and that it appeared that there were not sufficient assets to pay the debts of the deceased.

It affirmatively appears, by the petition in this matter, that no such accounting was had before September 1, 1880, nor has there been such since; and it seems to me clear that no “right had lawfully accrued” to the petitioner, to be saved by the act of 1880 or section 3352 of the Code.

The provisions of section 2750 seem to me to be most salutary, and to relieve against a lax practice heretofore prevailing, tending to render uncertain titles of heirs-at-law, and I should be very unwilling, by enforcing any technicality, to weaken the force of that section, as to the limitation of time relating to such proceedings. I' am of the opinion that the petition in this matter does not confer jurisdiction upon this court, to take proceedings for the disposition of the decedent’s real property for the payment of debts, and that the proceeding should be dismissed.

Ordered accordingly.