Adams v. Fassett , 73 Hun 430 ( 1893 )

HARDIN, P. J.

Section 1843 of the Code that "devisees of a testator are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the-estate, interest, and right in the property, which * * * was-effectually devised to them by the decedent.” In Read v. Patterson, 134 N. Y. 130, 31 N. E. 445, the history of the legislation leading up to the enactment of section 1843 of the Code is given, and at page 136, 134 N. Y., and page 447, 31 N. E., of the opinion, it is-said that it is quite apparent that section 1848 of the Code enlarges the rights of creditors by permitting recoveries “when it appears that the creditors will be unable, with due diligence, tocoUect their debts by proceedings in the proper surrogate’s court, and by action against the executor or administrator.” The defense-of the statute of limitations interposed must fail if we follow Mortimer v. Chambers, 63 Hun, 342, 17 N. Y. Supp. 874, and the cases there cited. See, also, Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638; Code, § 388;¹ Mead v. Jenkins, 27 Hun, 573, affirmed 95 N. Y. 31; Malloy v. Vanderbilt, 4 Abb. N. C. 130.

2. The essential facts found by the trial judge seem to be supported by the evidence. Judgment affirmed, with costs.

MERWIN, J. I concur in affirmance.

1 Code Civil Proc. § 388, provides as follows: “An action, the limitation-of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.”