majority">The Surrogate.

— The proceedings in this matter seem to have been conducted as prescribed by statute. It is objected, however, on the part of the devisees, that they cannot be maintained, because the debt on which they are based was a partnership debt of the deceased and one Prescott, the latter of whom died, leaving abundant assets. Prescott died first, and Swain, as survivor, took the assets of the firm. He afterwards died, leaving insufficient available assets, so far as converted into money, to pay his debts. If this creditor had endeavored to enforce his claim during the life time of Swain, against the legal representatives of Prescott, he would' have failed, as it would have been his duty to have sought payment from Swain, unless he had first shown his inability to recover from him. He is now pursuing his remedy against the real estate of the survivor, and I know of no rule of law to prevent him from doing so. He could have sought payment out of his real estate when living, and I cannot see that his death should preclude him from seeking it from the same source. I think the authorities referred to by counsel for the petitioner amply sustain this view.

The counsel for the devisees also contend that it does not appear that the assets are insufficient to pay the debts. On the contrary, they allege that the assets exceed the debts. In order to make good this position, it is claimed by them that the statute (3 R. S., 169, § 6 [5th ed.]; 2 R. S., 82), by declaring that debts due deceased shall be deemed to be assets, makes them such for the purpose of .this proceeding, whether tliey be collected or not. In this I cannot *490agree. I think the chapter of the Revised Statutes regulating the proceeding to mortgage, etc., for the payment of debts, is so constructed as to avoid the very difficulty suggested. Thus, when the application is made by the executor or administrator, he shall state in his petition, 1st, the amount of personal property which has come to his hands. (3 R. S., 187 § 3 [5th ed.] ; 2 R. S., 100.) Then, by section 19, the Surrogate is authorized, whether the application be made by the executor or by a creditor, to make an order for the sale, even if the whole of the assets which come into his hands have not been applied to the payment of debts, where it shall appear that the executor has proceeded with reasonable diligence. It seems to me that the assets had in view by the statute are not what shall be deemed assets for the purpose of the inventory, but the amount of personal property converted into money or immediately available which has actually come into the hands of the executor or administrator. The doubtful and worthless debts are to be inventoried and are assets to be accounted for, but if not collected at the time of making such an application as this, clearly the possibility of their ultimate recovery cannot be alleged in bar of this proceeding. The courts have repeatedly held, as shown by the authorities cited by the counsel for the petitioner, that debts due to the testator, only recoverable by suits, are not assets to be charged as in his hands until the actual receipt of them by him.

It would seem from the account of proceedings filed that the executors have proceeded with reasonable diligence in converting the personal property of the *491deceased into money and applying it to the payment of debts, if, indeed, that part of section 19 embracing that provision can be regarded as applicable to a proceeding of this character. They, at an early day, commenced an action to recover the large claim alleged to be due the deceased, which is still pending. I do not think I can compel creditors to await the doubtfid issue of that litigation. They have rights to be protected, as well as heirs-at-law and devisees.

Subdivision 3 of the 14th section is repealed by the Laws of 1837 (ch. 469, § 41 — the 19th section of the Revised Statutes above referred to), by necessary implication, and takes its place. Section 61 (2 R. S., 108), is section 50 of the original revision; and if I am correct in placing section 19 (above) in lieu of subdivision 3 (above), then this, court has, undoubtedly, the power to order the desired sale.

As I gather that the money cannot advantageously be raised by mortgage, an order for sale of the premises will be entered in the usual form.

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