18 Wend. 350 | N.Y. Sup. Ct. | 1837
By the Court,
The important question presented is, whether, since the Revised Statutes, the first judgment against the defendants by default, is an admission of assets sufficient to satisfy it; if not, then there may be a valid defence to the second action, to wit, a denial of the devastavit alleged, and the defendants should have an opportunity to come in and defend. Before these statutes it was well settled, the judgment was conclusive evidence; and the defendant of course was estopped from denying the sufficiency of assets in debt upon the judgment suggesting a waste. The omission to plead a deficiency, was construed into a confession of assets. (1 Saund. 219, n. 8 ; 3 East, 2; 1 Johns. Ch. Cas. 27 ; 4 Cowen, 445; Ram on Assets, &c., 303, 4.)
[668] The Revised Statutes, I think, have altered the law. The 27th section (2 R. S. 87,) directs that the executor and administrator shall pay the debts of the deceased in the following order of classes : 1. Debts entitled to a preference under the laws of the United States of America. 2. Taxes assessed upon the estate of the deceased previous to his death. 3. Judgments docketed and decrees enrolled against the deceased, according to priority. 4. Recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. The next section (28th) provides, that no preference shall be given in the payment oi any debt over debts of the same class, except those specified in the third class; nor of debts due, over those to become due ; and that the commencement of a suit, or obtaining a judgment against the executor or administrator, shall not entitle such debt to any preference over others of the same class. By the 31st section, (p. 88,) the executor or administrator, in a suit against him, may show, under notice given with his plea of the general issue, that there are debts of a prior class unsatisfied, or that there are unpaid debts of the same class with that on which the suit is brought, and judgment shall be rendered only for such part of the assets in his hands as shall remain after satisfying the debts of
There is an intimation in the opinion of Chief Justice Savage, in the case of The People v. Judges of Albany Mayor’s Court, (9 Wendell, 489,) that the power of the surrogate to permit an execution to issue by an order under the 32d §, (p. 88,) is to be limited to the case of a defended suit, mentioned in the 19th §, (p. 116.) This was not so understood in the case of Winne v. Van Schaick, (9 Wendell, 448,) and it seems to me, with great respect, the language of the statute is too broad and unqualified to fairly authorize such a restricted interpretation. It is not, however, important to express "a decided opinion upon the point in this case.
Judgment in second suit set aside, and all subsequent proceedings, on payment of costs.