Mitchell v. Mount

Clerke, J. On appearing before the surrogate, on the order to show cause, the executor showed that he had only received from the personal estate $11,000, and that the personal debts amounted to $42,000. Notwithstanding this, the surrogate decided that the judgment should be forthwith paid, and accordingly ordered an execution against the executor for the full amount of the judgment. The statute (3 Rev. Stat., 5 ed., 204, § 21), authorizing the ' surrogate to order an execution to be issued in such cases, does not authorize him to order an execution in cases where the debts exceed the assets, unless it is a debt that has a preference. Otherwise, this section would completely nullify the previous provision contained in article 2 (3 Rev. Stat., 5 ed., 174, § 31), which directs every executor and administrator to pay the [267] debts of the deceased, according to a specified order of classes: 1. Debts entitled to a preference under the laws of the United States; 2. Taxes assessed upon the estate of the deceased previous to his death; 3. Judgments docketed and decrees enrolled against the deceased, according to the priority thereof respectively; 4. All recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. The judgment recorded by the respondents gives them no priority. It was not recorded against the deceased during his lifetime, but against his executor. It is, therefore, to be regarded as belonging to the fourth class; and the statute expressly provides (3 Rev. Stat., 5 ed., 174, § 32), that no preference shall be given in the payment of any debt over other debts of the same class, except those specified in the third class; nor “ shall the commencement of a suit for the recovery of any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class.” Under our present system of administration of the estates of deceased persons, all judgments against their personal representatives come in only for equal dignity with recognizances, bonds, sealed instruments, and demands on simple contract. (See Parker a. Gainer, 17 Wend., 559; Butler a. Hempstead, 18 Ib., 666.) It is quite clear, therefore, that the surrogate had no authority to order execution for the payment of this judgment; the most that he could do would be on the accounting by the executor, under the order to show cause, to order an execution for the sum that may have appeared on the settlement of the account to have been a just proportion of the assets applicable to the judgment. (3 Rev. Stat., 5 ed., 174, § 36.) It does not appear from the case that any attempt at a settlement of the account has been made, so as to enable the surrogate to ascertain what that proportion may be. Indeed, he says nothing of a settlement of the account in the order appealed from; he merely says, that it appears there are sufficient assets in the hands of the executor. This is not sufficient to authorize the issuing of an execution against the executor for any amount. There must first be a settlement of the account, to ascertain the proper proportion. Whether this is practicable in any case before the final settlement, is questionable. [268] The order of the surrogate should be reversed, with costs of the appeal. Sutherland and Leonard, JJ., concurred.