In re Cogswell , 4 Redf. 241 ( 1880 )

The Surrogate.—By § 42, 3 R. S. (6 ed.), 79, a collector is authorized to collect the goods, chattels, personal estate, and debts of the deceased, and secure the same at such reasonable expense as the Surrogate shall allow, and for those purposes he may maintain suits as administrator, and under the direction of the Surrogate he may sell such of the goods of the deceased as shall be deemed necessary for the preservation and benefit of the estate, after the same shall have been appraised. This is the measure of his authority, except as it is enlarged by section 10 of chapter 359 of the Laws of 1870. But six months not having elapsed since the petitioner’s appointment, that section does not affect the questions involved in this matter.

The parties interested do not object to the order asked, and concede that all the prayer of the petition should be granted, as calculated to promote the best interests of the estate.

Where the statute prescribes the authority of an officer appointed by the Surrogate, he is undoubtedly impliedly invested with power to do those things that are necessary to accomplish the authority conferred. But I am of the opinion that the Surrogate has no authority to enlarge the power of such an officer, by virtue of the Surrogate’s general authority to control the conduct of executors and administrators. I am of the opinion, therefore, that tire expenses which have attended the care of the premises, furniture, horses, carriages, &c., were necessary for the preservation of the property, and to secure the same to the use and benefit of the estate, and that the payment of the taxes upon the real estate was alike necessary for the preservation of the real estate, and that the petitioner, as receiver, has the authority to pay such taxes, and thus avoid a sacrifice of the same. The expenses, as stated in the petition, amounting fo $488.06, including the expenses C7 of the petitioner’s appointment, ,and reasonable counsel fees, come within the purview of the statute mentioned. But I am of the opinion that there is no authority conferred upon the collector to pay the funeral expenses, or any incident thereto. (Re Parish, 29 Barb., 627.)

I am also of the opinion that the section authorizes the Surrogate to direct the sale of the horses, &c., as necessary for the preservation and benefit of the estate, but no such sale can take place until such property shall be appraised. The order to be entered herein may provide the means of such appraisal.

Ordered accordingly.