Marine Bank of Chicago v. . Van Brunt

Allen, J. That the parties interested should have had notice of the application to the surrogate for leave to issue the execution, and an opportunity to be heard cannot well be doubted. The title to property once owned by the deceased debtor, and upon which the judgment was claimed to be a lien, had vested in other persons not parties to the record either by succession or grant, and heirs or terre tenants should not be divested of their property without a day in court. It is true, the act of 1850, chapter 295,. does not in terms direct notice to be given, but enacts that the surrogate may, “ upon cause shown,” direct execution to issue. The form of procedure is not given, but if “ cause ” is “ to be shown ” in a matter affecting the interests of others, the facts alleged and the cause shown may be controverted by the parties to be affected. Not only are the claimants of the real property sought to be applied to the satisfaction of the judgment interested, but the personal representatives of the deceased debtor should be heard. They may show cause why there should not be execution of the judgment at once or at all having respect to the proper administration of the estate,-or they may elect to pay from the personalty in exoneration of the realty. The personal representatives and the tenants of the lands sought to be charged in execution, were the real parties to the proceeding before the surrogate, and were entitled to be heard. The jurisdiction of the surrogate was improperly exercised without notice to the parties "to be affected by the *163 proceeding. Whether the want of notice renders the execution void or merely voidable, need not be decided. Aside from this defect the execution was properly vacated and set aside for the want of authority for its issue from the court in which the judgment was entered. Prior to the adoption of the Code, if the judgment debtor died before execution sued out, an execution could only be had either against the personal representatives, or against heirs or terre tenants upon sci/refacias. The Code abolished the writ of scire facias, and enacted that the remedies theretofore attainable in that form might be obtained by civil action. A less expensive and more summary process was given to entitle a judgment creditor to execution upon a stale judgment, or after the death of the judgment debtor. In the one case, leave to issue execution can be had on motion after notice to the adverse party. (Code, § 284.) In the case of the death of a judgment debtor after judgment, the heirs, devisees or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting of administration, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively, and the personal representatives may be so summoned at any time within one year after their appointment. (Code, § 376.) The act of 1850, is not in conflict with the provisions of the Code, or inconsistent with the remedy given by it. It is cumulative, and adds another restraint to those already existing. The surrogate can regulate and adjust the equities of different claimants upon the estate, and provide for a proper, preservation and distribution of the assets, while the court of law can only determine the legal rights of the individual judgment creditor. Before the passage of the act of 1850 judgment could be enforced against the personal representatives of a deceased judgment debtor, or against property in the possession of heirs or terre tenants upon the order and judgment of the *164 court in which the judgment was entered, and that act makes the leave of the surrogate necessary in addition. The court of law adjudges the legal rights of the parties, and that the creditor is legally entitled to enforce the judgment against property in possession of the parties to the proceeding. The surrogate passes upon the right of the creditor in view of the conflicting or equal claims of others upon the estate. Whether the application to the surrogate should precede the procedure in the court of law, may be questionable, notwithstanding the intimation in Dox v. Backenstose (12 Wend. R., 542), I incline to the opinion that it is immaterial, and that either may be first taken, or that they may proceed pa/ri passu ; but an execution cannot issue without the order and permission of both tribunals. Wood v. Morehouse (45 N. Y., 368), Alden v. Clark (11 How. Pr. R., 209) and Frink v. Morrison (13 Abb. Pr. R., 80) presented the same question as that before us, and were decided in accordance with the views already expressed. The order should be affirmed. All concur. Order affirmed.