Selover v. . Coe

Miller, J. If the plaintiff is entitled to maintain this action, it must be done in accordance with the statutory regulations, which establish a legal liability under the circumstances presented. There is no rule of the common law which furnishes a precedent for such a case. Even if there was, as the statute has made provision for cases in which heirs or next of kin may be liable for the contracts and debts of a deceased person, these enactments are controlling. They must, therefore, be considered as establishing the law upon the subject, and superseding any other rule which may previously have existed. The claim of the plaintiff is based upon the theory that the heir at law or next of kin, who has received a portion of the property of the deceased, is liable to the extent of the amount received upon the contract alleged and proved to have been made with the intestate. This, we think, cannot be upheld, as will be seen by a careful examination of the provisions of the Revised Statutes bearing upon the subject. A reference to these will show conclusively that no such case was intended to be, or actually is, provided for ; and that the plan adopted for the payment of the debt of a deceased party is at variance with the idea that an action will lie in favor of the debtor and against the heir at law, under the facts proved. *442 In regard to heirs at law, 2 Be vised Statutes, page 452, section 32, provides: “ The heirs of every person who shall have died intestate, and the heirs and devisees of any person who shall have died after the making of his last will and testament, shall respectively he liable for the debts of such person arising by simple contract, or by specialty, to the extent of the estate, interest and right in the real estate which shall have descended to them from or been devised to them by such person.” And section 33, as amended in 1859, declares : “ But such heirs shall not be liable for such debts unless it shall appear either that the deceased left no personal assets within this State to be administered, or that the personal assets of the deceased were not sufficient to pay and' discharge the same, or that, after proceedings before the proper Surrogate’s Court and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or.from his next of kin or legatee:” ' Ho liability can be upheld under the provisions cited, because it does not appear that the deceased left any personal assets out of which the debt can be obtained, or that it could be collected in the manner provided by section 33. It was proved, on the contrary, that there was more than $50,000 in the hands of the administrator unadministered at the time when the suit was brought, which has since been distributed. This fact of itself is a complete answer to the right of the plaintiff to prosecute this action until these assets were disposed of and appropriated toward the payment of the plaintiff’s claim, if any she had. There is another objection to the right of the plaintiff to maintain this action against the defendant as an heir at law, which cannot be" overcome. 2 Bevised Statutes, page 109, section 64, prescribes, that no suit shall be brought against heirs and devisees within- three years from the time of granting letters testamentary or of administration upon the estate. The action was brought within two years after letters of *443 administration were issued, and is thus barred by the statute cited. It is claimed that this objection was waived because it was not pleaded. The provisions of the Code which are relied upon in support of this position are not applicable to such a case. Section 74 relates to the time within which, and not to the' time after which, actions may be commenced, and does not affect a provision of the character of the one cited. Section 148 does not embrace an objection of the character provided for by the statute, but those which are included within section 144 of the Code, which are of a different nature. It may also be remarked that in an action against heirs at law, which is regulated by statute, the plaintiff must make out a case affirmatively within its provisions. He must show every thing that the statute demands, and his failure to do so is a good and sufficient ground for preventing a recovery. An important and a material part of his case, which he is bound to establish, is, that his suit is brought after three years, as the statute provides, and without this he cannot maintain an action. As to an action against the next of kin, the Revised Statutes contain provision for an advertisement for creditors to present their claims within a certain period of time, which is named ; and the only authority for the commencement of an action to recover a debt against the next of kin is 2 Revised Statutes, page 90, section 42, which, after providing for the presentation of claims, enacts as follows : “ But any creditor who may have neglected to present his claim as aforesaid may, notwithstanding, recover the same in the manner prescribed by law, of the next of kin and legatees of the deceased to whom any assets shall have been paid or distributed.” The plaintiff did present her demand to the administrators, • and it was rejected by them. And although they had assets in their hands, no action was brought against them to recover the amount within the time required by law, or at any time afterwards. Having thus presented her claim, the plaintiff has no remedy, within the statute last cited, against the next of *444 kin, and no such ease is provided for by the statute last cited. In the case of Erwin v. Loper (43 N. Y., 521), it was said that the creditors who have omitted to present their claims within the six months are protected from loss by the remedy - against the next of kin to whom any land may have come, or any assets shall have been paid or distributed, thus holding that an action lies in such a case. There is also another objection to the plaintiff’s claim, and that is that it was rejected, and not referred, and no action brought within six months after such rejection, for the enforcement of the same, as the statute requires. (2 E. S., 89, § 38.) This would be a clear defence by the administrators, and, as no action would lie against them, it is difficult to see how it could be sustained against the heir at law or next of kin. It is said that the statute only applies to administrators and executors, and they alone can interpose the defence which it gives. It provides against “ any action ” being brought, and although the executor or administrator is required to give notice of his intention to offer such evidence of such rejection and neglect, in bar of the action, there is no sufficient reason why the disability does not attach in any other action which may be brought by the creditor. In fact, when the creditor fails to prosecute within the time prescribed, his right of action is gone against any one. The objection that the attorney signed the administrators’ names to the notice is not well taken. He did so at their request, and acting on their behalf and by their authority; it was their act, for which they are responsible. This defence under this statute is sufficiently set forth in the answer to the complaint. There is no reason why the statute should not run against the plaintiff’s demand, and the fact that the claim could not be enforced until after the death of the intestate, does not aid the plaintiff. This may be the case where other claims against the deceased are not due until after his death, but does not take the case out of the operation of the statute. There was no error in the admission of evidence, and as *445 the plaintiff failed to make out a case, the order of the General Term, affirming the judgment entered upon the referee’s report, must be affirmed, with costs. All concur. Judgment affirmed.