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Elizabeth Lankford v. Annie E. Thornton, as Legatee and as etc., and Others, Impleaded with Charles J. McDermott, as Legatee, etc.
The remedy against the legatee or heirs of a deceased debtor being purely statutory, is controlled, defined and regulated by the enactments now in force. (Selover v. Coe, 63 N. Y. 438.) The right to pursue the successors in interest, such as legatees, is based on the fact and to the extent only that assets have been paid or distributed to such legatee. (Code Civ.
Proc. § 1837.) So far as concerns the demurring legatee, Mr. McDermott, it is not alleged that the legacy to him has been paid, or that any assets of the estate have been distributed to him. This suit, begun in less than a year after the testator’s death, was instituted before any such legacy could be lawfully paid. (Code Civ. Proc. § 2721.) Hence it was rightly held that the complaint as to this defendant does not state facts sufficient to constitute a cause of action.
The interlocutory judgment sustaining the demurrer is, therefore, affirmed, with costs, but with leave to the plaintiff to plead anew within twenty days upon payment of costs. Jenks, P. J., Thomas, Rich, Stapleton and Putnam, JJ., concurred.