In re Dunn

The Surrogate.

By section 37, 3 R. S., 95 (6 ed.), executors and administrators are required to proceed with diligence to pay the debts of the deceased, and are directed to pay them according to the order of classes named, the first being debts of preference under the federal laws; second, taxes assessed previously to decedent’s death; and, third, judgments docketed and decrees enrolled against the deceased, according to the priority thereof, respectively. ’ There seems to be no objection raised as to the regularity of the entry of judgment in this case, and I must therefore assume that it was entered after the death of the judgment debtor, on a verdict obtained in a suit against him before his death, and comes within the provisions of the statute, subdivision 3, above cited.

In Nichols v. Chapman (9 Wend., 452), it was held that a judgment might be entered on a warrant of attorney^to confess, &c., after the death of the defendant, as of the term in which he died, if the death happen during the term ; and if it happen during the'vacation, as of the term immediately preceding the death; and that, though the judgment did not bind the real estate of the deceased, it was a debt having a preference, to be paid in the usual course of administration.

By section 8, 3 R. S., 618 (same edition), it is provided that in case judgment recovered shall be filed and docketed within a year of the death of the party against whom it is obtained, the death may be suggested on the record, if it happen before judgment rendered, and if after judgment rendered it shall be certified on the back of the record by the attorney filing it, and that such judgment shall not bind the real estate which the party had at his death, but be a preferred debt to be paid in the usual course- of administration. Chief Justice Savage, in Nichols v. Chapman, at page 457, well says that “the course of administration among judgments is to pay the oldest first.”

In Salter v. Neville (1 Bradf., 488), the case of Nichols v. Chapman is cited, and commented upon, the Surrogate saying that “ the record itself, when duly made up, related back to the time of the entry of that order or judgment, no matter when it was in fact signed.” In Bernes v. Weisser (2 Bradf., 212), the same case -is recognized as holding that the judgment record after death in such a case gave priority of payment over simple contract debts. It will be observed that there is nothing in subdivision 3 of the section above cited, stating when the judgment shall be docketed or decree enrolled, but the provision is that it shall be against the deceased. The case under consideration comes directly within that provision, for it is a judgment against the deceased, and it must be conceded to have been duly entered as such. Willard on Executors, p. 379, etc., discusses this question, and reaches the conclusion, substantially, that a judgment entered against the decedent after his death relates to the time of the verdict, and comes within the provisions of the statute giving it a preference over ordinary liabilities of the estate.

I am therefore of the opinion that the petitioner is entitled to payment of his judgment, as a judgment docketed against the deceased under the 3d subdivision of section 37 above cited ; but I am also of the opinion that inasmuch as, in the same case, judgment for costs was recovered against the petitioner, those costs should be deducted from the amount of the judgment in his favor, and he is entitled to an order directing the administrator with the will annexed to pay the balance of his judgment, as the answer of the administrator does not show that he has not ample funds in his hands applicable to its payment.

Let an order be entered accordingly.