Eaton v. Youngs

Ltobt, J. From the affidavit upon which the motion is founded, it appeal’s that the appellant recovered judgment in this court against the respondent at the June term, 1874, and that soon thereafter the respondent died, leaving two heirs-at-law, one of whom has been duly appointed administrator of his estate and has duly qualified as such. Notice of this motion was served on such heirs and administrator. The motion is made under sec. 2, ch. 140, R. S. (Tay. Stats., 1650, § 2). We think no execution should be awarded until the heirs and administrator have an opportunity afforded them to pay the judgment without execution. If they fail tó do so on proper demand, it should still be made to appear, before leave to issue execution be granted, that the respondent died seized of property which has come to the hands of his heirs or administrator, and which is chargeable by law with the- pay [509] ment of the debts of the deceased. No such demand is shown in the present case, and it does not appear that there is any property in the hands of the heirs or administrators which an execution would reach. The motion must therefore be denied, but with leave to renew it on a proper application. By the Court. — So ordered.