Raynor v. Gordon , 30 N.Y. Sup. Ct. 264 ( 1880 )

Gilbert, J.:

The petition to the surrogate shows, on its face, that the executor was indebted to the estate of the decedent in the sum of $1,415.72, and that the decedent owed no debt except that due to the petitioner, which amounted only to the sum of $542.82. Thus, the petition showed a surplus of assets over and above debts amounting to $872.90. The legal intendment is that a debt due to a testator from an executor is an asset in the hands of the latter, for he is made by statute liable for the amount of the debt as so much money in his hands, at the maturity of the debt. (2 R. S., 84, § 13.) No fact is stated in the petition showing that the executor is irresponsible, or that for any reason his indebtedness is not an available asset. The jurisdictional fact of a deficiency of assets therefor was wholly wanting.

"We are of opinion, also, that the petitioner’s claim has been barred by the statute of limitations. In this proceeding the debt must be established. A judgment is merely evidence of the debt. The statute of limitations is pleadable in bar of the debt in the same manner as though the proceedings were an action to recover the debt. (Ferguson v. Broome, 1 Bradf., 10.) It appears, however, that the executor is also a devisee, that the prayer of the petition is restricted to the land devised to him, and that the executor did not appear before the surrogate, or in any manner avail himself of the statute of limitations as a defense in this proceeding. The appellants insist that the respondents, who are judgment creditors of the executor personally, cannot set up the statute of limitations because their interest in the lands devised to the executor is not a vested one. Their interest is a lien only, it is true, and that is neither a jus v>i re, nor a jus ad rem. Still, there is no contingency about it. "Whatever rights their judgments afford are vested rights. But the statute on this subject does not admit of the construction contended for. Its language is that any person claiming under any heir or devisee may set up the statute of limitations, &c. (2 R. S., 101, § 10.) The claim of the respondents is to ■enforce their lien on the lands which the petitioner asks to have sold. The land was devised to the executor. Their claim, therefore, rests exclusively upon the title of such devisee, and therefore must be in a legal sense under him.

The decree of the surrogate must be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Darman, JJ.

Decree of surrogate affirmed, with costs.