| N.Y. Sup. Ct. | Nov 15, 1851
The heirs of every person who shall' have died intestate, are declared by law to be liable for the debts of such intestate, to the extent of the real estate descended to them (2 R. S. 452, § 32). For this liability they must be prosecuted, either in a court of law or equity jointly, and not separately (Session Laws 1837, p. 537, § 73). In such a suit the amount which the plaintiff is entitled to recover must be apportioned among all the heirs, in proportion to the value of the real estate inherited by them, and such proportion alone shall be recovered of each heir. The costs are to be apportioned and recovered in the same manner (2 R. S. 455, § 52, 53). Though they must be sued together the statute creates no joint liability. On the contrary, it specifically provides for securing each against the payment of any more than his share. Each heir is made a debtor for himself, and not for another to the extent of his equitable proportion of the debt of his ancestor. In no sense, therefore, can the heirs be regarded as joint debtors.
The plaintiff has proceeded, as he would have been authorized to do if the defendants had been jointly indebted upon contract. It is only in such a case, that a judgment, even in form, may be entered against a party not brought into court. It is only in such a case, that a party not served with process may be summoned to show cause in the manner in which these defendants have been summoned {Code, § 136, 375). The defendants in this action, as we have seen, are not jointly liable, and therefore the plaintiff had no right to enter judgment against those who had not been served with process.
Whether the plaintiff had aright under the second sub-division of the 136th section, to proceed against such of the defendants as had been served with the smnmons, or whether it was necessary to bring them all into court, before he could proceed against "any, it is not necessary now to decide. Nor is it necessary now to say whether the plaintiff can yet maintain an independent suit
On the other hand, it might, perhaps, be held that the statute referred to is so far modified by the second sub-division of the 136th section as to sustain the judgment against such heirs as were in fact made parties to the suit. However, these questions might be determined, this judgment, as against the parties who make this motion, is irregular. The motion, therefore, must be granted. The proceedings, as against these parties, subsequent to the judgment, must also be set aside.