15 Abb. Pr. 227 | N.Y. Sup. Ct. | 1862
The provisions of the Revised Statutes to which the counsel of Margaret Clark refers me, are only applicable to -determine the priority of the liens of several creditors of a living or deceased debtor. Those provisions are also connected with other sections relative to the manner in which purchasers •or mortgagees should be affected.
A judgment filed and docketed after the decease of the defendant, undoubtedly does not bind real estate, but is to be. ■considered as a debt to be paid in the usual course of administration ; that is, it shall not be entitled to the preference which the law gives to judgment-debtors of a deceased person over recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. (2 Rev. Stat., 87, .§ 27.)
But where the real estate has been sold under a foreclosure, and there is a surplus fund in court, and where there is no •other creditor entitled to a priority, and, indeed, no debt of any kind, a court of equity will not disregard the claim of a creditor who has proved his claim before the surrogate and obtained a decree, and will not appropriate the surplus to a legatee of the •deceased debtor.
The statute itself expressly provides that the proceeds of a testator’s or intestate’s estate shall not be distributed among the .legatees or next of kin until after the payment of the debts. It is only the surplus after the payment of debts that they are entitled to ; and, certainly, it cannot be expected that a court of ■equity will dispose of the fund under its control in contraven
The former order of the court, giving this fund to the legatees, cannot conclude the petitioner, who was not a party to the proceeding. That order was made without any consideration-of the claims of creditors who were not before the court.
The report of the referee must be set aside, and an order entered in conformity with this opinion.
