31837-1839 DECEDENTS ESTATES. 81 the action is brought in th supreme court, the facts must be certified by the judge or referee before whom the trial took place. ARTICLE SECOND. ACTION BY A CREDITOR AGAINST HIS DEBTOR'S NEXT OF § 1837. When action lies against next of kin,legatees, etc. 1838. Action may be joint or several. 1859. In joint action, recovery to be apportioned. 1840. Recovery in a several action. 1841. Requisites to recovery in 1813. Liability of heirs and de- 1845. Effect of application to 1846. Action must be joint. 1848. Requisites to recovery 1849. Id.; against devisees. § 1837. An action may be maintained, as prescribed in this article, against the surviving husband or wife of a decedent, and the next of kin of an intestate, or the next of kin or legatees of a testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action. § 1838. An action, specified in the last section, must be brought, either jointly against the surviving husband or wife, and all the legatees, or all the next of kin, as the case may be, or, at the plaintiff's election, against one of them only. But where a legacy is received by two or more persons jointly, they are deemed one legatee, within the meaning of each provision of this article, relating to legatees. 8 Misc 46C 23 Id. 365. § 1339. Where a joint action is brought, as prescribed 77 Hun, 249. in the last section, the whole sum, which the plaintiff is entitled to recover, must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the fina judgment must award, against each defendant separately, the proportionate sum thus ascertained. The costs of the action, if the plaintiff is entitled to costs, must be apportioned in like manner; except that the expenses of serving 204 N.Y.172 116 Id. 144. 144 N. Y. 216. 149 N. Y. 61. 30 App. Div. 56. 146 N.Y. 29. 149 the summons upon each defendant must be taxed against him only; and one sheriff's fee, for returning an execution, may be taxed against each defendant, against whom any sum is awarded. § 1840. Where an action is brought against the surviv ing husband or wife only, or against one only of the next of kin, or legatees, the sum, which the plaintiff is entitled to recover, cannot exceed the sum which he would have been entitled to recover from the same defendant, in an action brought, as prescribed in the last section. § 1841. If the action is brought against a legatee, or against all the legatees, the plaintiff must show, either 1. That no assets were delivered by the executor or administrator of the decedent, to the surviving husband or wife, or next of kin; or 2. That the value of assets, so delivered, has been recovered by some other creditor; or 3. That those assets, after payment of the expenses of administration and preferred demands, are not sufficient to satisfy the demand of the plaintiff; in which case, he can recover only for the deficiency. § 1842. Where some of the legatees are preferred to others, an action may be maintained, as prescribed in the last five sections, against one or all of those who are equally preferred or equally deferred, as if the legatees of that class were all the legatees. But where it is brought against a preferred legatee, or a class of preferred legatees, the plaintiff must show, in addition to the matters, with respect to the next of kin, required by the provisions of the last section, the same matters, with respect to each legatee, or class of legatees, to whom the defendant or defendants are preferred. 1843. The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the 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. § 1844. But an action, to enforce the liability declared in the last section, cannot be maintained, except in one of Id. 61. the following cases: 1. Where three years have 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 three years have elapsed, since letters testamentary, or letters of administration, upon his estate, were granted, within the State. § 1845. Where it appears that, at the time of the commencement of such an action, a petition, seasonably presented as prescribed by law, praying for a decree to dispose of real property of the decedent, for the payment of his debts, was pending in a surrogate's court having jurisdic- § 1846. An action against heirs or devisees, brought as 79 Hun, 487. prescribed in the last three sections, 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. § 1847. In such an action, the sum, which the plaintiff 79 Hun, 487. is entitled to recover, for damages and costs, must be apportioned among all the defendants, in proportion to the value of the real property descended to each heir, or devised to each devisee, as the case may be, as prescribed in section one thousand eight hundred and thirty-nine of this act, for a similar apportionment among legatees or next of kin, in proportion to the assets received by them. The final judgment must, in like manner, award against each de fendant the proportionate sum, with which he is chargeable. 1848. Where the action is brought against heirs, the 18 Abb. M plaintiff must show, either 1. That the decedent's assets, if any, within the State, were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class; or 2. That the plaintiff has been unable, or will be unable, with due diligence, to collect his debt, by proceedings in the proper surrogate's court, and by action against the executor or administrator, and against the surviving husband or wife, legatees, and next of kin. The executor's or administrator's account, as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts, required to be shown by this section. 1849. Where the action is brought against devisees, the plaintiff must show, in addition to the matters specified in the last section, either that the real property of the deredent, which descended to his heirs, was not sufficient to C. 148. 146 N.Y. 29. 146 N.Y. 29. pay the plaintiff's debt, or that the plaintiff has been un able, or will be unable, with due diligence, to collect hi debt by an action against the heirs. § 1850. Where the assets, applicable to the plaintiff's debt, were sufficient to pay a part thereof, or a part thereof has been collected from the executor or administrator, or from the surviving husband or wife, next of kin, or legatees, the plaintiff can recover only for the residue, remaining unpaid or uncollected; and if the action is against devisees, he can recover only for the residue, which the real estate descended, or the amount of his recovery against the heirs, is insufficient to discharge. $1851. The complaint must describe, with common certainty the real property, descended or devised to the defendant; and must specify its value. § 1852. If it appears that any of the real property, which descended or was devised to a defendant, had not been aliened by him at the time of the commencement of the action, the final judgment must direct, that the debt of the plaintiff, or the proportion thereof which he is entitled to recover against that defendant, be collected out of that real property. Such a judgment is preferred, as a lien upon that property, to a judgment obtained against the defendant, for his individual debt or demand. § 1853. But a judgment, rendered as prescribed in the 87 Hun, 219. last section, does not bind, and the execution thereupon cannot in any way affect, the title of a purchaser, in good faith and for value, acquired before a notice of the pendency of the action is filed, or final judgment is entered, and the judgment-roll filed. 79 Hun, 486. 18 Abb. N. C. 142. § 1854. If it appears that, before the commencement of the action, or afterwards and before the filing of a notice of the pendency of the action, the defendant aliened the real property descended or devised to him, or any part thereof, the plaintiff may, at his election, take a final judgment against him for the value of the property so aliened, or so much thereof as may be necessary, as in an action for the defendant's own debt. § 1855. 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, 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 exsecutor or administrator is allowed by law. The commencement of an action, under any provision of this article, does not entitle the plaintiff's demand to preference over another or the same class, except as otherwise specially prescribed by law. SS 1856-1860 DECEDENTS' ESTATES. 65 1856. Where it appears, in an action brought as prescribed in this article, that there are unsatisfied demands against the decedent's estate, of a class prior to that of the plaintiff's demand, the defendant is entitled to judgment, if the value of the property, which was received, devised, or inherited, as the case may be, by the class to which he belongs, does not exceed the amount of the valid demands of a prior class. If it exceeds the amount of those demands, the judgment against the defendant cannot exceed such a proportion of the plaintiff's demand, as the total amount of the valid demands of his class bears to the excess. § 1857. Where a defendant, or a person belonging to his class, has paid a demand against the decedent's estate, of a class prior to that of the plaintiff's demand, or has paid a demand of the same class, the amount of the demand so paid must be estimated, in ascertaining the amount to be recovered, as if it was outstanding and unpaid. § 1858. An action against heirs or devisees, brought as prescribed in this article, is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy of any of the parties; except that an execution shall not be issued against an infant heir or devisee, until the expiration of one year after final judgment is rendered, and the judg ment-roll tiled. § 1859. This article does 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. § 1860. Where a person, who takes real property of a 8 Misc. 469 decedent by devise, and also by descent; or who takes personal property as next of kin, and also as legatee; or who takes both real and personal property in either capacity; or who is executor or administrator, and also takes in either of the before mentioned capacities; would be liable, in one capacity, for a demand against the decedent, after the exhaustion of the remedy against him in another capacity; the plaintiff, in any action to charge him, which can be maintained, without joining with him any other person, except a person whose liability is in all respects the same, may recover any sum, for which he is liable, although the remedy against him in another capacity was not exhausted. But this section does not increase the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable; nor does it charge a defendant individually, who is liable only in a representative capacity. |