1 Bradf. 10 | N.Y. Sur. Ct. | 1849
The will of John L. Broome was admitted to Prohate, January 16,1836, and letters testa
By the original rule of the civil law, the heir was chargeable with the debts of the deceased, not only to the extent of the assets, but to the extent of all the other property of the heir, provided he accepted the inheritance. By a provision of Justinian, however, he might protect himself from responsibility beyond the assets descended, by making an inventory. By the Common Law, the heir was liable for the debts of the ancestor to the value only
The rule of the Common Law was modified at an early period in this State, and by a provision in the act of April 4,1786, Greenleaf, 1, y. 237, which has been continued in the subsequent revisions, heirs and devisees are made liable for all the debts of the ancestor to the extent of the assets descended, provided the personal estate of the deceased be insufficient, or has been previously exhausted. The statutes' now contain ample directions how this liability is to be enforced, and the claims of creditors of the ancestor against lands descended to the heirs or devisees, can only be pursued in strict conformity to the provisions of the statute. (Pierce vs. Alsop, legal Observer, February, 1846, p. 52.)
A more convenient mode of reaching the real estate was provided by the act of 1786, through the intervention of the personal representatives ; the executor or administrator being authorized, on discovering or suspecting that the personal assets would be insufficient for the payment of the debts, as soon as conveniently might be, to present a true and just account to the Judge of Probate, and request his aid in the premises. It thereupon became the duty of the Judge to cite the parties in interest before him, to show cause why the real estate should not be sold, and the proper proceedings then followed to the termination of the matter. It will be perceived that this applica
Having thus briefly reviewed the nature and the history of the relative rights of creditors, and those who represent the personal and real estate of the deceased, and the mode of enforcing those rights, it remains to consider whether there is sufficient ground in the present case to
In the year 1837, however, the rights of creditors to compel a sale of the real estate underwent an important modification. The original 48th section, the only provision giving them any compulsory power over the executor or administrator was repealed, and a substitute for it given in the 72d section of the act “ concerning the proof of . wills,” &c. (La/ws, 1837, p. 536.) The effect of a judgment recovered against the personal representatives became the subject of express legislation, and whatever doubt may have existed as to the construction of the 13th and 16th sections of the Revised Statutes on this point, was entirely resolved. The 72d section of the act of 1837 in terms declares that, “ where a judgment has been recovered against an executor or administrator for any debt due from the deceased, and there are not sufficient assets in the hands of such executor or administrator to satisfy the same, the debt for which the judgment was obtained shall, notwithstanding the form of such judgment, remain a debt against the estate of the deceased to the same extent as
The counsel for the executor claimed, however, that. under the amendment of the 72d section of the act of 1837, by chapter 172 of the Laws of 1843,.the record produced was prima facie evidence of the debt sought to be estabEshed. The amendment of 1843 was a re-enactment of the 72d section of the act of 1837, with the additional proviso, “ that where such judgment or decree has been obtained upon a trial or hearing upon the merits, the same shaE be prima facie evidence of such debt before the Surrogate.” (2 It. 8, 3d ed. p. 170. § 52.) The difficulty is, that the act of 1843 was passed after the judgment was recovered by Ferguson against Broome’s executor, and could not, as against strangers, give the judgment any greater force than it possessed by law at the time it was recovered. (Wood vs. Byington, 2 Barbour's Ch. R., 387.) And we have already seen, that when the judgment was recovered, it was no evidence at aE of a debt as against the hens.
But even where a judgment has been obtained against an executor or administrator, subsequent to the act of 1843, and there was a trial or hearing on the merits, the
Supposing, then, that, as urged by the counsel for the executor, the amendment of 1843. was retro-active, and provided merely a new rule of evidence in the power of the Legislature to prescribe, so as to give this judgment obtained in 1841, a greater force against the heir than it previously possessed; the only effect of the production of
The operation of this construction upon the statute of limitations, must in many cases materially affect the rights of parties. The heir has always had the right to set up the statute of limitations in bar to such claims, and the admission of the executor or administrator has not. been deemed to revive debts barred by the statute, so as in any way to affect the real estate. (Mooers vs. White, 6 J. Ch. R.,p. 318.) On application to the Surrogate for authority to sell the real estate, this privilege is expressly secured to the heir or devisee. (2 R. 8., 3d ed. § 13, p. 165.) If then, by the recovery of a judgment against the executor or administrator, the debt is converted from the form of a promise to that of a judgment, a twenty years’ limitation would take the place of the limitation of six years. This would be a great inroad upon the rights of those who are entitled to the real estate. It is quite enough to follow the statute in admitting the judgment as pi'i/ma faeie evidence of the debk To make the debt substantially a judgment against the heirs or devisees, and to clothe it with all the attributes of a judgment, instead of leaving it Avhere it was, a simple contract debt against the estate of the deceased, would be a clear transgression of the very rule the Legislature has laid doAvn, that the debt shall remain a debt to the same extent as before. I am bound, therefore, to hold under the most favorable view of this case that can possibly be taken, that the objection of the
There is also another difficulty in this case to which it is proper to aEude. In Mooers vs. White, ChanceEor Kent was of the opinion that the power of the Surrogate to decree a sale of the real estate for the purpose of satisfying the claims of creditors, ought to be invoked within a reasonable period after the administration had commenced. At that time there was no specific period prescribed within which the application must be made. The executor or administrator was bound to apply as soon as conveniently might be, after discovering or suspecting that the personal estate was insufficient to pay the debts ; but so far as the express letter of the law stood, the proceeding might be instituted at any time. It was evident, therefore, that unless some equitable restriction was imposed upon the exercise of so broad a discretion, the power of the creditor through the medium of the personal representative to reach the réal estate, constituted, in the vigorous language of ChanceEor Kent, a “ hidden and tremendous lien,” of the most dangerous character. It was the opinion of that learned jurist, that a year was a reasonable period .for the enforcement of such a right. In the case of Jackson vs. Robinson, (4 Wendell's R., p. 442,) fourteen years was declared to be “ an unreasonable length of time” to delay making the application. The Revised Statutes, however, expressly provided the limitation of three years within which the appEcation must be made, and it appears that this restriction of time was imposed “ in conformity to the suggestion of ChanceEor Kent, in 6 John. Ch. Rep., 360.”
The original 48th Section, Title 4, part 2, c. 6, of the Eevised Statutes, was the first statutory provision which authorized creditors to compel executors or administrators to apply to the Surrogate for leave to sell the real estate. It was repealed hy the 74th section of the act of 1837 “ concerning the proof of wills,” &c., and a substitute for it given in the 72d section of the last named act. This substitute, which appears to have been overlooked in the case of Hyde vs. Tarnier above cited, expressly prohibits the executor or administrator from assigning “ for cause why he should not be ordered to sell real estate, that the time within which he is allowed to sell the same has expired.” While, therefore, on his own voluntary application, the executor or administrator cannot so apply after three years subsequent to the granting of letters, yet on the application of creditors, he may he ordered to- sell the real estate at any time. So far as relates to compulsory proceedings on the part of creditors, then, the law stands in regard to the time the application may be made, precisely the same as before the Eevised Statutes.
The question now is, whether the Surrogate has not a discretion in granting the order of sale, whére creditors institute proceedings after the expiration of three years. It is to he observed, that on a voluntary application by the executor or administrator, the law having fixed three years as a reasonable time within which the application should he made, it is expressly said that the Surrogate, after ascertaining the debts, &c., “ shall” order the real estate to he mortgaged, leased, or sold. But on the compulsory proceeding instituted hy a creditor, the language of the statute is, that the Surrogate “ may order” the sale. Thus where the time is limited, the language is mandatory; where the time is not limited, the expression used is "merely
Any one of these objections would be fatal. It is my conclusion, therefore, that good cause has been shown by the heirs why the real estate should not be sold. The petition must be dismissed, and as the executor obtained the order on the suggestion of Ferguson, the latter must pay the costs of the widow and heirs.
Note.—The first section of the Title relative to sales of real estate by executors and administrators, as it originally stood in the Revised Statutes, contained a provision that the application might be made to the Surrogate after they had filed an inventory “ and shall have rendered an account of their proceedings to the Surrogate, and the same shall have been allowed and settled.” This clause was stricken out by § 22, Laws, 1830, Ch. 320, p. 388. By the 72d section of the act of 1837, in proceedings by creditors, they were authorized to apply “after the rendering of an account by an executor or administrator to a Surrogate.”
Thus on a voluntary application by an executor or administrator, an
The Revisers say,The principle is partly in the act of 1822, p. 283. § 2.” On referring to this act, it will be found to contain only a general direction as to the entry of the proceedings.