Sanford v. Granger

By the Court, Cady, J. The appellant offered no evidence to the surrogate, other than the exemplified copy of the record of his judgment, and if that did not make it the duty of the surrogate to make an order requiring the administratrix and administrators to sell real estate sufficient to pay the whole amount of the judgment, then the decree of the surrogate ought not to be affirmed. The appellant in this case did not alledge in his petition that there were not sufficient assets in the hands of the administratrix and administrators to pay his judgment, nor did he offer any evidence to prove that fact; but without proof of a deficiency of assets, the judgment is no evidence of a debt against the heirs at law. The language of the 72d section of chapter 46 of the laws of1837 is: “and where a judgment has been obtained against an executor or administrator for any debt due from the deceased, and there are not sufficient assets in the hands of the executor to satisfy the same, the debt for which judgment was obtained shall, notwithstanding the form of the judgment, remain a debt against the estate of the deceased to the same extent as before, and to be established in the same manner as if no such judgment had been recovered.” By chapter 172 of the laws of 1843, a proviso was added to section 72 as follows: Provided that when such judgment or decree has been obtained upon a trial or hearing upon the merits, the same shall be prima facie evidence of such debt, before the surrogate. The only effect of this proviso is, that the creditor need not show any thing in the first instance but the record of his judgment, to prove his debt and the amount of it; but that does not prove that the heir or devisee is liable to pay the debt. To prove that liability the creditor must prove the fact that there are not sufficient assets in the hands of such executor or administrator to satisfy the same. This required no more of the judgment creditor than was required of him by 1 R. L. of 1813, section 3, by which it was en — 402 — acted that no judgment against any executor or administrator for any debt of his testator or intestate shall be deemed a bar to any subsequent action against the heirs of such testator or intestate for the same matter upon which such judgment was obtained, prodded always, that such plaintiff shall show a want of personal assets to satisfy such judgment, or an execution thereupon duly issued or returned unsatisfied. The same rule as re-enacted in 2 R. IS. 452, section 32, makes the heir liable for the debts of his ancestor “arising by simple contract or by speciality, to the extent of the estate descended to him.” But section 33 such heir shall not be liable for any such debt unless it shall apppear that the personal assets of the deceased were not sufficient to pay and discharge the same. And by by section 36 it is made incumbent on the creditor seeking to charge any heirs to show the facts therein required to render them liable. At common law the creditor had his election, to sue the executor or heir on a contract by which the ancestor in terms bound his heir; and if he elected to sue the executor and obtained a judgment, the contract was extinguished and the creditor could not afterwards sue the heir; but by the statute referred to, a judgment against an executor does not bar an action against the heir, but to prevent the judgment from being a bar, the creditor must show a want of assets in the hands of the executor to pay the judgment; and the same rule is incorporated into section 72, by the words already cited. If the creditor shows a judgment, and shows “ there are not sufficient assets in the hands of the executor to satisfy the same,” then he is entitled to an order directing the executor to sell the real estate left by the deceased. But in this case, as has already been stated, the appellant did not alledge or prove that there were not sufficient assets in the hands of the administratrix and administrators to pay the judgment, and without that proof I am of opinion that the decree of the surrogate, “ that the said judgment is not prima facie evidence of a debt against the heirs at law so as to authorize a sale of said real estate, and that there was no proof before the surrogate establishing the debt of the appellant as against-.the said heirs at law,” was not erroneous. — 403 — There is another ground upon which the decree of the surrorogate may in part at least be supported. The appellant claimed to have real estate enough sold to pay the amount of the judgment, including $460,01 of costs. The respondents denied his right to sell real estate to pay any part of the judgment. ÍTeither party made any distinction between that part of the judgment which was for a debt due from the intestate and that part of it which was for costs awarded against the administratrix and the administrators for their default in the defense of the action. Wood v. Byington, (2 Barb. Ch. Rep. 387,) is an authority for saying, that the costs awarded against executors can in no event be a charge on real estate in the hands of an heir. The chancellor in that case said: “ The act of April, 1843, does not charge the real estate with the costs of the suit in which the judgment or decree against the personal" representatives is obtained, but merely makes the judgment or decree presumptive evidence of the existence and amount of the debt due from the testator.” In that case neither party made any distinction .between that part of the decree which was for the debt due from the intestate, and that which was for costs, and yet the chancellor reversed so much of the decree as related to the costs, and affirmed the other part. That case is, therefore, an authority for saying, that the appellate court may and ought to take an objection apparent on the record, and which goes to the merits of the cause, although not taken in the court below; and it must be remembered, that in this case some of the respondents are infants, and they are not to be concluded although it be found that the guardian has not before the surrogate made all the objections he might have made. “ It is the duty of the court to see that the rights of an infant are not prejudiced or abandoned by the answer of his guardian.” (1 Barb. Ch. Prac. 148. Barrett v. Alvine, 7 Gill & John. 191.) The effect of an unqualified reversal of the surrogate’s decree would be to compel him to proceed upon the case as it was before him, and make an order for the sale of the real estate of the intestate for the payment of the full amount of the judgment, including the costs. Enough has been said to show that such an order would — 404 — not be warranted by the facts in, and the law applicable to, the case. There is another objection, not raised before the surrogate, but which in my judgment goes far to show that the appellant did not make out a case by his petition or his proof entitling him to a decree ordering a sale of the real estate of the intestate to satisfy any portion of his judgment. No accounting by the administratrix and administrators was alledged in the petition, nor proved before the surrogate. All that is stated upon that subject in the petition is, “ that on the 19th day of January, 1849, Giles J. Slocum who was the sole acting administrator of said estate rendered to the said surrogate an account from which it appeared there were not sufficient assets to pay the debts of the deceased.” Admitting that allegation in the petition to be literally true, it was not enough to entitle the appellant to an order for the sale oí the real estate of the intestate. The debts of the intestate may have amounted to tens of thousands of dollars, and the 72d section already cited shows that a judgment creditor who applies for an order to sell the real estate of the deceased debtor, to satisfy a judgment against his executor, must show that there are not sufficient assets in the hands of the executor to satisfy his judgment. There may, in this case, be assets enough in the hands of. the administratrix and administrators to pay the judgment ten times over, yet not be enough to pay all the debts of the intestate. Again, the rendering an account by one of the administrators is not enough; they are all bound to account, and it is the duty of the creditor to make them all account, before he has any right to call upon the heirs at law to pay a judgment against executors or administrators. To allow the account of one of the administrators to be sufficient would open a door to fraud. One may not know what assets the others have had, or what has been done with the assets in the hands of the others. By 1 R. L. of 1813,450, § 23, it was enacted that when any executor or administrator whose testator or intestate shall have died seised of any real estate, shall discover or suspect that the. personal estate of such testator or intestate is insufficient to pay his or her debts, such executor or administrator shall «fee. The words any executor or administrator being in the singular num — 405 — her in this section were in Jackson v. Robinson, (4 Wend. 436,) held sufficient to authorize one of several administrators to apply to a surrogate for an order to sell the real estate of the intestate. In that case, the administrator described himself as surviving administrator: that gave the surrogate jurisdiction. There had been a sale, and it was sought to impeach the proceedings before the surrogate collaterally, and the court held that that could not be done if the surrogate had jurisdiction. The language of 2 R. S. 100, § 1, is: “ After the executors or administrators of any deceased person shall have made and filed an inventory according to law, if they discover the personal estate of their testator or intestate to be insufficient to pay his debts, they may,” &e. This shows they are all to act, and in Fitch v. Witbeck, (2 Barb. Ch. Rep. 161,) it was held by the chancellor that all the administrators ought to join in the application. In this case, however, the administratrix and administrators make no application to the surrogate; nor do they object to any thing the petitioner asks. They doubtless wish to have the real estate sold, as well to pay the costs as the debt, as that will relieve them from all responsibility on account of the costs. 2 R. ¿S'. 82, § 2, makes it necessary for the executors or administrators to make a true and perfect inventory of all the goods, chattels and credits of their testator or intestate. They must all make it. 2 R. ¿S'. 100, § 2, requires that the petition of the executors or administrators to the surrogate for an order to sell real estate, shall set forth : 1. The amount of the personal estate which has come to the executor- or administrator. 2. The application thereof. 3. The debts outstanding against the testator or intestate, as far as can be ascertained. 4. A description of all the real estate of which the testator or intestate died seised, with the value of the respective portions or lots, and whether occupied or not, and if occupied, the names of the occupants. 5. The names and ages of the devisees, if any, and of the heirs of the deceased. A petition setting forth these matters was necessary to give jurisdiction to the surrogate. By 2 R. ¿S'. 102, § 14, it is declared that the surrogate shall make no order for mortgaging, leasing or sale of the real property of the deceased, until upon due examina — 406 — tion, he shall be satisfied: 1. That the executors or administrators making such application have fully complied" with the preceding provisions of that title, to wit, title 4, ch. 6, part 2. 2. That the debts, for the purpose of satisfying which the application is made, are justly due and owing, &c. 3. That the personal estate of the deceased is insufficient for the payment of the debts, and that the whole of such estate which could have been applied to the payment of the debts of the deceased, has been duly applied for that purpose. [Saratoga General Term, January 5, 1852. Section 72, in chapter 460 of the laws of 1837, as amended by ch. 172 of the laws of 1843, was intended as a substitute for 2 R. S. 108, § 48, and does not authorize a surrogate, upon the application of a creditor, to order an executor or administrator to sell the real estate of the testator or intestate. Section 50 gives that power if the surrogate be satisfied of the matters specified in § 14, in that title. Those matters have just been stated; but they are not alledged in the appellant’s petition, nor were they proved to the surrogate. There is nothing in the case proving that the administratrix and administrators had rendered an account, and had accounted as provided in ch. 6, part 2, title 4 of the R. S., or that the whole of the personal estate had been applied to the payment of the debts of the intestate. I am, therefore, of opinion that the decree of the surrogate should be affirmed. But as it is to be affirmed upon grounds not distinctly taken before the surrogate by the respondents, it is affirmed without costs, and without prejudice to any application hereafter to be made by the appellant to the surrogate, for a sale of the real estate of the intestate. Wiüard, Sand and Cady, Justices.]