James v. Beesly

The Surrogate.—From the showing in this case, I am not able to say that there are any assets in the hands of the executor, applicable to the payment of the judgment in question ; and in order to determine the question, it would seem to be necessary to require the executor to file an account of his proceedings. Some reference is made by the rejoinder of the petitioner to a fund alleged to be in the trust company under the control of the executor, which control is denied by the executor; but it nowhere appears in the petition, answer or reply from whence the fund was derived, nor can I say that it is applicable to the payment of the petitioner’s judgment. The petitioner’s counsel seems to have fallen into two obvious errors; first, in supposing that this judgment has any preference over ordinary claims against the estate. This is not a judgment against the deceased, which would entitle it to a preference, but against his representatives (subd. 3, § 37. 3 R. S. [6 ed.], 95); second, he seems to assume that the real estate now held by the widow, the petitioner, constitutes assets in the hands of the executor, which is altogether erroneous. It is true, that in some cases, where real estate is directed to be sold by executors, it will be regarded as personal property; but not even then is it assets in the hands of an executor. But where there is no power of sale [240] conferred upon the executor until the death or remarriage of the widow, who is-by the terms of the will the devisee of the same, the executor has no control of such real estate until such death or remarriage. The only mode he can acquire jurisdiction over it is by applying to the Surrogate, to mortgage, lease or sell the same, for the purpose of paying debts of the decedent. Another error into which the petitioner’s counsel seems to have fallen, is that execution upon such a judgment ■may issue against, and levy upon, the real estate of the decedent. This can .only be done upon a judgment docketed against the decedent in his lifetime. It is entirely clear that the executors are not the grantees of a power in trust under this will, as to the real estate in question, which can be exercised before the remarriage or death of the widow, as argued by petitioner’s counsel. It is also clear that 3 R. S. (6 ed.), 629, has no application to this case, because the executors, as has already been stated, will not hold the land in question in trust for the use of another, until after the remarriage or death of the Avidow. And even then the section would have no application to this cas for that section only provides that the land so held in trust woul be liable to debts, &c., against the person to whose use they were holden, which, in this case, would be the remaindermen under the will; and certainly there can be no pretext that the judgment in question is against them. The motion, therefore, must be denied. Ordered accordingly.