his devisee. To charge her in the latter capacity proof of all the facts established in the action against her as executrix is required. Richards v. Gill (1910), 138 App. Div. 75, 122 N. Y. Supp. 620.

In a joint action under section 1838 of the Code the assets of the estate may be marshalled, and the proportionate sum to be paid by each defendant must be ascertained and the amount to be paid by each separately awarded by the judgment. Duck v. McGrath (1914), 160 App. Div. 482, 145 N. Y. Supp. 1033, affd., 212 N. Y. 600.

An action by a creditor against his debtor's next of kin, legatees, heirs or devisees for a judgment to be apportioned among them pursuant to the provisions of section 1839 of the Code of Civil Procedure is an equitable action and is properly placed upon the calendar of the Special Term of the Supreme Court for trial and should not be stricken therefrom. Herzog v. Marx (1908), 58 Misc. 356, 110 N. Y. Supp. 1039.

Sections 1841, 1842 and 1849 of the Code of Civil Procedure do not apply to a joint action under this section. Where such an action is a general one, to which every one who has received any portion of the real or personal estate of the decedent, either as widow, devisee, legatee, heir at law or next of kin," is a party, it is unnecessary to state whether there are any persons who have derived property from the decedent under any statute, or by the general rules of law, or by any instrument, who are primarily liable for the debt. Duck v. McGrath (1914), 160 App. Div. 482, 145 N. Y. Supp. 1033, affd., 212 N. Y. 600.

ARTICLE IX.

WHEN ACTION LIES AGAINST HEIRS AND DEVISEES.

(Fiero, Spec. Act., 3rd Ed.,

pp. 386-396.)

DEC. EST. L., § 101. Liability of heirs and devisees for funeral expenses and

debts of decedent.

CODE CIV. PRO., § 1844. When action therefor may be brought against heirs and devisees.

§ 1845. Effect of application to sell real property.

§ 1846. Action must be joint.

Dec. Est. L., § 101. Liability of heirs and devisees for funeral expenses and debt of decedent.

The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the funeral expenses and debts of the decedent, arising

by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by, the decedent.

Formerly Code Civ. Pro., § 1843. Amended by L. 1919, ch. 91. (B., C. & G. Consol L., 2nd Ed., p. 1813.)

Code Civ. Pro., § 1844. When action therefor may be brought against heirs and devisees.

An action, to enforce the liability declared in section one hundred and one of the decedent estate law, cannot be maintained, except in one of the following cases:

1. Where one year has elapsed since the death of the decedent, and no letters testamentary, or letters of administration, upon his estate, have been granted within the state.

2. Where eighteen months have elapsed, since letters testamentary, or letters of administration, upon his estate, were granted, within the state. Amended by L. 1909, ch. 65 and L. 1915, ch. 636.

Code Civ. Pro., § 1845. Effect of application to sell real property.

Where it appears that, at the time of the commencement of an action to enforce the liability declared in section one hundred and one of the decedent estate law, a proceeding for the judicial settlement of the accounts of the executor or administrator of decedent in which an order to dispose of real property of the decedent for the payment of his debts may be made, is pending in a surrogates court having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the proceeding is disposed of, unless the plaintiff elects to discontinue. If an order to dispose of real property is granted, the action must be dismissed, unless the plaintiff has alleged in his complaint, or alleges in a supplemental complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plaintiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the order, and the judgment in the action does not charge, or in any way affect, that property.

Amended by L. 1916, ch. 444.

Code Civ. Pro., § 1846. Action must be joint.

An action against heirs or devisees, brought as prescribed in section one hundred and one of the decedent estate law and the last two sections of this act, must be brought jointly against all the heirs, to whom any real property descended from the decedent, or jointly against all the devisees, as the case may be.

Amended by. L. 1909, ch. 65.

The statutory liability of a testator as the stockholder of a bank is one arising by "simple contract" within the meaning of section 101 of the Decedent Estate Law so as to impose the liability upon a devisee to the extent of the real property devised.

Richards v. Gill (1910), 138 App. Div. 75, 122 N. Y. Supp. 620.

The cause of action created by section 101 of the Decedent Estate Law against heirs or devisees to recover an indebtedness existing against the person from whom they acquired the property can only be maintained against the direct heirs and devisees, and cannot be maintained against heirs or devisees of such heirs or devisees. Green v. Dunlop (1909), 136 App. Div. 116, 120 N. Y. Supp. 583.

The interest of an heir at law of a deceased mortgagor in the mortgaged property is subject to be wiped out by a judgment in foreclosure and, in case of a deficiency, judgment may be entered! against the administratrix of the deceased mortgagor, she having: been made a party to the foreclosure action, and collected out of property coming into her hands in due course of administration. Where the complaint in an action to foreclose the mortgage sought to obtain judgment for deficiency individually against the widow and next of kin of the deceased mortgagor, who was personally liable for the mortgage debt, a demurrer by one of the heirs at law of the deceased mortgagor will be sustained. Buckley v. Beaver (1917), 99 Misc. 643, 166 N. Y. Supp. 131. Although after a decision that a judgment creditor of a testatrix has no lien upon an award made when lands devised by her were subsequently taken by eminent domain, and that the award has become personal property the same as if the devisees had aliened the land, the judgment creditor, suing under section 101 of the Decedent Estate Law to enforce the statutory liability of the devisees, still demands a decree that the plaintiff has a lien upon the award and does not ask for personal judgment against the devisees, such judgment may, nevertheless, be entered. But in such action the devisees can only be charged with a personal judgment for the amount which they actually received as the net proceeds of the land taken on condemnation, and hence, where it has been previously held that the award is subject to the lien of the defendants' attorneys, the judgment should be limited to the excess of the award over the amount of the lien. Lawrence v. Grout (1910), 140 App. Div. 629, 125 N. Y. Supp. 982.

Limitation of action under section 101 of the Decedent Estate Law is twenty years, where it is based upon the original sealed

instrument of the ancestor. City Equity Co. v. Bodine (1910), 141 App. Div. 907, 126 N. Y. Supp. 439.

Section 1844 of the Code of Civil Procedure, prohibits the institution of an action under section 101 of the Decedent Estate Law until three years have elapsed after letters of administration are granted. This is a statutory prohibition against the commencement of an action within the meaning of section 406 of the Code of Civil Procedure. The six-year Statute of Limitation, on a note sought to be charged upon real property which has descended to heirs, is therefore extended by the time which intervenes between the death of the decedent and three years after letters of administration are issued. This section does not create any new liability against the heirs but merely provides a method for enforcing an existing liability of the decedent against assets which have come into the hands of his heirs. So the period of nine years for the commencement of an action does not date from the death of the decedent but from the time of a payment on the note. For three years after issuance of letters plaintiff has an enforcible remedy against the real property of decedent by a proceeding under section 2750, Code of Civil Procedure, and immediately after the expiration of such remedy the present remedy becomes available to him. Hill v. Moore (1909), 131 App. Div. 365, 115 N. Y. Supp. 289, affd., 198 N. Y. 633.

The Statute of Limitations in an action against a devisee under section 101 of the Decedent Estate Law for the debt of the testator as a stockholder of an insolvent bank does not begin to run, where the testator contested his liability, until that liability is determined by a final judgment against his estate establishing the amount of the deficiency with which he is chargeable. Richards v. Gill (1910), 138 App. Div. 75, 122 N. Y. Supp. 620.

ARTICLE X.

REGULATIONS PECULIAR TO ACTIONS AGAINST HEIRS,
LEGATEES, ETC.

(Fiero, Spec. Act., 3rd Ed., pp. 397-400.)

CODE CIV. PRO., § 1855. Classification of debts to be enforced under this article. DEC. EST. L., § 102. Liability of heir or devisee not affected where will makes specific provision for payment of debt.

Code Civ. Pro., § 1855. Classificatioon of debts, to be enforced under this article. Where the surviving husband or wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as prescribed in this article, or

section one hundred and one of the decedent estate law, they must give preference in the payment thereof, and they are so liable therefor, in the order prescribed by law, for the payment of debts by an executor or administrator. Preference of payment cannot be given to a demand, over another of the same class, except where a similar preference by an executor or administrator is allowed by law. The commencement of an action, under any provision of this article, or section one hundred and one of the decedent estate law, does not entitle the plaintiff's demand to preference over another of the same class, except as otherwise specially prescribed by law.

Amended by L. 1909, ch. 65.

Dec. Est. L., § 102. Liability of heir or devisee not affected where will makes specific provision for payment of debt.

The preceding section and article two of title three of chapter fifteen of the code of civil procedure do not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised, or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised.

Formerly Code Civ. Pro., § 1859. (See B., C. & G. Consol. L., 2nd Ed., p. 1817.

ARTICLE XI.

WHEN ACTION WILL LIE TO ESTABLISH OR IMPEACH A WILL.

(Fiero, Spec. Act., 3rd Ed., pp. 401-408.)

SUBD. 1. When action will lie.

2. Proof necessary to establish lost will.

Subd. 1 When Action Will Lie.

(Fiero, Spec. Act., 3rd Ed., pp. 401-404.)

Sections 1861, 1867, and former section 2653-a of the Code of Civil Procedure do not authorize the court to appoint a guardian ad litem for an infant beneficiary, in a will refused probate by a Surrogate, to sue to establish the will. Dixon v. Cozine (1908), 114 N. Y. Supp. 615.

Where a woman marries on the faith of her husband's oral ante-nuptial agreement to make a will in her favor, which promise he subsequently fulfilled, but afterwards made other testamentary disposition of his property, the Supreme Court under its inherent equitable powers has jurisdiction to enforce such ante-nuptial agreement to procure a judgment establishing the will made pursuant to said agreement, the same being inaccessible owing to the fact that it has been probated in a foreign State, and in such suit