12 Barb. 392 | N.Y. Sup. Ct. | 1852
By the Court,
The appellant offered no evidence to the surrogate, other than the exemplified copy of the record of his judgment, and if that did not make it the duty of the surrogate to make an order requiring the administratrix and administrators to sell real estate sufficient to pay the whole amount of the judgment, then the decree of the surrogate ought not to be affirmed. The appellant in this case did not alledge in his petition that there were not sufficient assets in the hands of the administratrix and administrators to pay his judgment, nor did he offer any evidence to prove that fact; but without proof of a deficiency of assets, the judgment is no evidence of a debt against the heirs at law. The language of the 72d section of chapter 46 of the laws of1837 is: “and where a judgment has been obtained against an executor or administrator for any debt due from the deceased, and there are not sufficient assets in the hands of the executor to satisfy the same, the debt for which judgment was obtained shall, notwithstanding the form of the judgment, remain a debt against the estate of the deceased to the same extent as before, and to be established in the same manner as if no such judgment had been recovered.” By chapter 172 of the laws of 1843, a proviso was added to section 72 as follows: Provided that when such judgment or decree has been obtained upon a trial or hearing upon the merits, the same shall be prima facie evidence of such debt, before the surrogate. The only effect of this proviso is, that the creditor need not show any thing in the first instance but the record of his judgment, to prove his debt and the amount of it; but that does not prove that the heir or devisee is liable to pay the debt. To prove that liability the creditor must prove the fact that there are not sufficient assets in the hands of such executor or administrator to satisfy the same. This required no more of the judgment creditor than was required of him by 1 R. L. of 1813, section 3, by which it was en
The effect of an unqualified reversal of the surrogate’s decree would be to compel him to proceed upon the case as it was before him, and make an order for the sale of the real estate of the intestate for the payment of the full amount of the judgment, including the costs. Enough has been said to show that such an order would
By 1 R. L. of 1813,450, § 23, it was enacted that when any executor or administrator whose testator or intestate shall have died seised of any real estate, shall discover or suspect that the. personal estate of such testator or intestate is insufficient to pay his or her debts, such executor or administrator shall «fee. The words any executor or administrator being in the singular num
The language of 2 R. S. 100, § 1, is: “ After the executors or administrators of any deceased person shall have made and filed an inventory according to law, if they discover the personal estate of their testator or intestate to be insufficient to pay his debts, they may,” &e. This shows they are all to act, and in Fitch v. Witbeck, (2 Barb. Ch. Rep. 161,) it was held by the chancellor that all the administrators ought to join in the application. In this case, however, the administratrix and administrators make no application to the surrogate; nor do they object to any thing the petitioner asks. They doubtless wish to have the real estate sold, as well to pay the costs as the debt, as that will relieve them from all responsibility on account of the costs. 2 R. ¿S'. 82, § 2, makes it necessary for the executors or administrators to make a true and perfect inventory of all the goods, chattels and credits of their testator or intestate. They must all make it. 2 R. ¿S'. 100, § 2, requires that the petition of the executors or administrators to the surrogate for an order to sell real estate, shall set forth : 1. The amount of the personal estate which has come to the executor- or administrator. 2. The application thereof. 3. The debts outstanding against the testator or intestate, as far as can be ascertained. 4. A description of all the real estate of which the testator or intestate died seised, with the value of the respective portions or lots, and whether occupied or not, and if occupied, the names of the occupants. 5. The names and ages of the devisees, if any, and of the heirs of the deceased. A petition setting forth these matters was necessary to give jurisdiction to the surrogate. By 2 R. ¿S'. 102, § 14, it is declared that the surrogate shall make no order for mortgaging, leasing or sale of the real property of the deceased, until upon due examina
Section 72, in chapter 460 of the laws of 1837, as amended by ch. 172 of the laws of 1843, was intended as a substitute for 2 R. S. 108, § 48, and does not authorize a surrogate, upon the application of a creditor, to order an executor or administrator to sell the real estate of the testator or intestate. Section 50 gives that power if the surrogate be satisfied of the matters specified in § 14, in that title. Those matters have just been stated; but they are not alledged in the appellant’s petition, nor were they proved to the surrogate. There is nothing in the case proving that the administratrix and administrators had rendered an account, and had accounted as provided in ch. 6, part 2, title 4 of the R. S., or that the whole of the personal estate had been applied to the payment of the debts of the intestate. I am, therefore, of opinion that the decree of the surrogate should be affirmed. But as it is to be affirmed upon grounds not distinctly taken before the surrogate by the respondents, it is affirmed without costs, and without prejudice to any application hereafter to be made by the appellant to the surrogate, for a sale of the real estate of the intestate.
Wiüard, Sand and Cady, Justices.]