Read v. . Patterson

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 130 This action was brought in 1882 to charge the defendants, as heirs of John H. McCunn, who died in July, 1872, with the payment of certain debts contracted by him in his life-time and due to the plaintiff at the time of the commencement of the action. It is founded upon the fact that the defendants, as such heirs, took by descent certain real estate of which McCunn died seized, and as his death was prior to the repeal of the provisions of the Revised Statutes upon the subject by L. 1880, ch. 245, the question requiring consideration on this review is whether the action is subject to the application of the statute as it existed prior to such repeal or the provisions of the Code of Civil Procedure, *Page 131 which as a substitute, succeeded it, and this depends upon the construction and effect in its relation to the case, of the provision of the Code (§ 3352) that "Nothing contained in any provision of this act * * * renders ineffectual or otherwise impairs any proceeding in an action or a special proceeding had or taken pursuant to law, or any other lawful act done, or right, defense or limitation lawfully accrued or established, before the provision in question takes effect." If, therefore, at that time there had accrued to the defendants any right or defense, which would be rendered ineffectual or otherwise impaired by the application to the action of the provisions of the Code of Civil Procedure, then for its purposes as further provided by the same section, the provisions of the Revised Statutes on the subject are deemed to remain in force notwithstanding such repeal. The defendants had no vested right to protection against liability for the debts of the decedent to the extent of the real estate of which he died seized, and which came to them by descent on his decease. It is true that at common law land descended or devised was not chargeable with simple contract debts of the ancestor or testator, nor was the heir liable even upon specialty, unless he was expressly named. (3 Bl. Com. 430.) But in this state his liability was created in 1786 by statute, which also gave to the probate court the power to direct the sale of the decedent's real estate upon the condition there mentioned, for the payment of his debts. (L. 1786, ch. 27.) And in 1801 and in 1813 further acts were passed having the same direction and of like effect, so far as related to the liability of heirs. (L. 1801, ch. 50; 1 R.L. 316.) So that at the time when the provisions of the Revised Statutes relating to suits against heirs and devisees went into effect, there had been for forty years in this state a liability of heirs for the debts of their ancestor, on whose death lands had descended to them. The purpose of those statutes was to give his creditors the benefit of the estate left by their debtor, or its equivalent, and to charge those upon whom descent was cast accordingly. The practical effect of the provisions of the *Page 132 Revised Statutes was the same, although the mode or practice of the proceedings to accomplish it was somewhat modified. It thus appears that prior to and at the time the substituted provisions of the Code were adopted, the heirs to whom lands had descended, took and held them subject to the payment of the debts of the ancestor, to the extent of any deficiency of his personal estate applicable to that purpose. (Watkins v. Holman, 16 Peters, 25, 62.) The right of his creditors to assert and establish their claims against his heirs in such case was not created by the Revised Statutes, but by them the manner of enforcing it and the conditions upon which the relief was made dependent were somewhat changed. Those modifications were matters remedial in character, and, therefore, did not within the meaning of the provision of the section before mentioned constitute a right which denied the applicability of the Code of Civil Procedure to the action for the purposes of the remedy and relief. (Parsons v. Bowne, 7 Paige, 354.) And it is equally difficult to see how those remedial provisions of the Revised Statutes can be treated as a defense within the meaning of that section. While they would, if in force, be in the way of the plaintiff's recovery in the present action, they were merely conditions precedent to be established by him. That is to say, they imposed upon the creditor the burden of alleging and proving certain facts as a condition to the right of relief. This is not a defense in the sense which that term is ordinarily understood in its application to legal proceedings. It is a failure to produce by proceedings preliminary to the action, facts which are essential to relief, or to establish them by evidence in support of a right which the plaintiff has, and which for its efficiency is dependent upon them. The fact that the burden is imposed upon the creditor for the purpose of the remedy is lessened by the provision of the Code, does not seem to have rendered ineffectual or impaired any defense which the heirs would otherwise have had, or could have alleged and established. It, therefore, follows that the operation of the provision of *Page 133 the statute that the plaintiff must show that he "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" (Code, § 1848), is not for the purposes of the present action suspended, or in its application to the action defeated. But as to the amount of the claims against the estate of the decedent a further question arises upon exception to the finding in that respect. The conclusion of the trial court was founded upon the assumption that they amounted to $94,768.79. The fact so found does not to that extent seem to have been supported by evidence. Upon that subject the views expressed in the opinion of Chief Judge FOLLETT are (without considering them further in that respect) adopted so far as they are to the effect that of those claims the sum of $32,394.19 was not established. For that reason the order appealed from should be affirmed and judgment absolute directed against the plaintiff.