18 Week. Dig. 124. 22 Id. 230. 100 N.Y. 35. 105 Id. 453. 155 Id. 383. TITLE III. Actions relating to the estate of a decedent. ARTICLE 1. Action by or against an executor or administrator. 3. Action to establish or impeach a will. § 1814. An action or special proceeding, hereafter commenced by an executor or administrator, upon a cause of action, belonging to him in his representative capacity, or an action or special proceeding, hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment, in an action hereafter commenced, recovered against an executor or administrator, without describing him in his representative capacity, cannot be enforced against the property of the decedent, except by the special direction of the court, contained therein. § 1815. An action may be brought against an executor or administrator, personally, and also in his representative capacity, in either of the following cases: 1. Where the complaint sets forth a cause of action against him in both capacities, or states facts, which render it uncertain, in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the defendant, in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action; do not require different places or modes of trial; and are not inconsistent with each other. In a case specified in this section, a judgment for the plaintiff for a sum of money must distinctly show, whether it is awarded against the defendant personally, or in his representative capacity. § 1816. In a case specified in the last section, or where costs, to be collected out of the individual property of an executor or administrator, are awarded in an action by or against him in his representative capacity, so much of the judgment, as awards a sum of money against him personally, may be separately docketed, and a separate execution may be issued thereupon, as if the judgment contained no award against him in his representative capacity. § 1817. In an action or special proceeding against two 18 Abb. N or more executors or administrators, representing the same C. 861. decedent, all are considered as one person; and those who are first served with process, or first appear, must answer the plaintiff. Separate answers, by different executors or administrators, cannot be required or allowed, except by direction of the court. Judgment in favor of the plaintiff may be entered, and, in a proper case, execution may be issued, against all the defendants, as if all had appeared. But this section does not affect the plaintiff's right to bring into court all the executors or administrators, who are parties. § 1818. One of two or more executors, to whom letters testamentary have not been issued, is not a necessary party to an action or special proceeding, in favor of or against the executors, in their representative capacity. § 1819. If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him, as the case requires. But for the purpose of computing the time, within which such an action must be commenced, the cause of action is deemed to accrue, when the executor's or administrator's account is judicially settled, and not before. § 1820. The guardian ad litem of an infant, in whose favor an action is brought, as prescribed in the last section, must, unless he is also the general guardian, execute and file with the clerk, before the commencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by a judge of the court, conditioned that the guardian will duly account to the infant, when he attains 3 Dem. 30. Dig. 543. 22 Abb. N. Conn. 323. 396. 4 Dem. 176. 144 N.Y. 512. 145 N.Y. 414. 145 N.Y. 414. 2 App. Div. 13. full age, or, in case of his death, to his personal representatives, for all money or property, which the guardian may receive, by reason of the legacy or distributive share. § 1821. A final judgment against an heir or devisee, bars an action against the executor or administrator of the decedent, for the same cause, and every other remedy to enforce payment thereof out of the decedent's property; unless an execution against property, issued upon the judg ment, has been returned wholly or partly unsatisfied, or sufficient real property to satisfy the judgment has not descended, or been devised, to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute. § 1822. [Am'd 1882, 1895, amendment to take effect Septem51 Hun, 194 ber 1, 1895.] Where an executor or administrator disputes or rejects a claim against the estate of a decedent, exhibited to him eitner before or after the commencement, of the publication of a notice requiring the presentation of claims, as prescribed by law, unless a written consent shall be filed by the respective parties with the surrogate that said claim may be heard and determine by him upon the judicial settlement of the accounts of sail executor or administrator as provided by section twenty-seven hundred and forty-three, the claimant must commence au action, for the recovery thereof against the executor or administrator, within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due; in default whereof, he, and all the persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof ont of the decedent's property. 35 Hun, 637. 185. 1823. Real property, which belonged to a decedent, is 15 Civ. Pro. not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof. 1 Dem. 36. 2 d. 242. 1 Conn. 562. 135 N.Y. 430. § 1824. In an action against an executor or administrator, in his representative capacity, wherein the complaint demands judgment for a sum of money, the existence, sufficiency, or want of assets, shall not be pleaded by either party; and the plaintiff's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in such an action, is not evidence of assets in the defendant's hands. 1825. An execution shall not be issued, upon a judzment for a sum of money, against an executor or adminis trator, in his representative capacity, until an order, permitting it to be issued, has been made by the surrogate, fro:n whose court the letters were issued. Such an order must specify the sum to be collected; and the execution must be indorsed with a direction to collect that sum. § 1826. At least six days' notice of the application for an order specified in the last section, must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence; in which case, notice must be given to such persons, and in such manner, as the surrogate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not, or will not be, sufficient to pay'all the debts, legacies, or other claims of the class to which the plaintiff's claim belongs, the sum, directed to be collected by the execution, shall not exceed the plaintiff's just proportion of the assets. In that case, one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever it appears that the sum, directed to be collected by the first execution, is less than the plaintiff's just proportion. § 1827. Where a judgment has been rendered against an executor or administrator, for a legacy or distributive share, the surrogate, before granting an order, permitting an execution to be issued thereupon, may, and, in a proper case, must, require the applicant to file in his office, an undertaking to the defendant, in such a sum, and with such sureties, as the surrogate directs, to the effect, that if, after collection of any sum of money by virtue of the execution, the remaining assets are not sufficient to pay all sums, for which the defendant is chargeable, for expenses, claims entitied to priority as against the applicant, and the other legacies or distributive shares, of the class to which the applicant's claim belongs, the plaintiff will refund to the defendant, the sum so collected, or such ratable part thereof, with the other legatees or representatives of the same class, as is necessary to make up the deficiency. 1823. An executor, administrator, or a person appointed by the surrogate, as prescribed in chapter eighteenth of this act, to dispose of the real property of a decedent, is deemed a trustée, appointed by virtue of a statute, within the meaning of that expression, as used in section seven hundred and sixty-six of this act. § 1829. An execution may be issued, in the name of an executor or administrator, in his representative capacity, upon a judgment recovered by any person who preceded nim in the administration of the same estate, in any case where it might have been issued in favor of the original plaintiff, and without a substitution. 2 Dem. 219. 1 Conn. 362 135 N.Y. 430, § 1830. If an executor or administrator is defendant in an action or special proceeding, pending when his powers cease, the plaintiff may, in a proper case, proceed therein against him, to charge him personally; but a judgment or other determination, thereafter rendered or made against him, is not of any force, as against the estate of the decedent, or a person succeeding to the administration thereof. § 1831. An executor or administrator cannot be made personally liable to the adverse party, for a debt or for damages, by reason of his having made a false allegation in pleading. § 1832. In an action or special proceeding, to which an executor or administrator is a party, wherein the question, whether he has administered the estate of the decedent, or any part thereof, is in issue, or is the subject of inquiry, and the inventory of assets, filed by him, is given in evidence, either party may rebut the same, by proof, either: 1. That any property was omitted in the inventory, or was not returned therein at its true value; or, 2. That any property has perished, or has been lost. without the fault of the executor or administrator; or has been fairly sold by him, at private or public sale, at a less price than the value so returned; or that, since the return of the inventory, it has deteriorated or enhanced in value. § 1833. In such an action or special proceeding, the executor or administrator shall not be charged with a demand or right of action, included in the inventory, unless it appears that the same has been collected, or might have been collected, with due diligence. 1834. The last two sections do not vary any rule of evidence, respecting any proof, which an executor or administrator may now make. § 1835. Where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section. § 1836. Costs, when awarded, et cetera. [Am'd 1895, 1897]-Where it appears in a case specified in the last section that the plaintiff's demand was presented within the time limitedy a notice published as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section eighteen hundred and twenty-two at least ten days be:or the expiration of six months from the rejection ther of the court may award costs against the executor or administrator to be coll cted either out of his individual property or out of the property of the decedent as the couit directs, having reference to the facts which appear upon the trial. Where |