Liability for Debts, etc., of Decedent;-Under the Revised Statutes.

2. Under the Revised Statutes.

21. Effect of judgment. Although, before the Revised Statutes, a judgment by default against devisees, upon service of process on a kin, heirs, and devisees are liable for debts, &c., 28. The cases in which legatees, next of part of them, was a personal debt against of the decedent, and the order of their liability, those served, as well as a lien upon the land and mode of proceeding to enforce it,-prescribed. descended, and at law extinguished the liabil-2 Rev. Stat., 451. ity of the others, it was not, in equity, an or in equity, and not separately. Laws of 1837, 29. Heirs must be prosecuted jointly, at law extinguishment without actual satisfaction; 537, ch. 460, $78; Mersereau v. Byerss, 3 N. Y. (3 and if one of those against whom judgment | Comst.), 261; Wood v. Wood, 26 Barb., 356, 362. was had, paid it, he might be entitled, in 30. Equitable suit. That a complainant equity, to the control of the judgment, and to suing in chancery to enforce an equitable contribution from all the devisees. Chancery, claim against heirs or devisees, which equity 1841, Schermerhorn v. Barhydt, 9 Paige, 28. arises from transactions subsequent to the 22. Infant heirs. It is no objection to a death of the decedent, is not to be held to sale of real property in equity for the pay- comply literally with all the requirements of ment of debts of the decedent, that the heirs the statute. Chancery, 1841, Schermerhorn are infants. [8 Ves., 28, n.; 1 Bro., 136, n.] v. Barhydt, 9 Paige, 28. Chancery, 1820, Thompson v. Brown, 4 Johns. Ch., 619.

23. Execution against, &c. The provision of 1 Rev. L., 318 (similar provisions, 2 Rev. Stat., 368, § 27; 455, § 54),—forbidding execution to be issued against infant heirs or devisees until a year after judgment,-applies where adults are joined with them; but against the adults, execution may go at once. Supreme Ct., 1826, Shooke v. Phillips, 5 Cow., 440. Compare Day v. Rice, 19 Wend., 644.

Where the

31. Proceeding on petition. land descended had been sold in partition, and the fund brought into court and invested for infant heirs,-Held, that as there was also an adult heir, a creditor of the decedent could not, upon petition, have it applied to his debt, but must proceed by suit, against all under the statute. Chancery, 1846, Cassidy v. Cassidy, 1 Barb. Ch., 467.

32. Legatees cannot be charged with a debt of the estate, unless the creditor show that no assets came to the next of kin, or that they are insufficient to pay his demand. [2 Rev. Stat., 452, § 27.] Supreme Ct., 1851, Stuart v. Kissam, 11 Barb., 271; reversing S. C., 2 Id., 493. 33. Co-legatees in no sense sustain to each 25. This is so, without reference to whether other the relation of surety in respect to the

24. A devise to executors to hold and manage the estate on valid trusts, vests the title in them, and they are liable as devisees for a debt of the testator. Supreme Ct., 1830, Judson v. Gibbons, 5 Wend., 224.

the executors qualify as such. Ib.

Al

testator's debts; each being liable only in proportion to the amount of his legacy. Ct. of Appeals, 1848, Wilkes v. Harper, 1 N. Y. (1 Comst.), 586.

26. Contribution among devisees. though the heir is not entitled to contributions from the devisees, towards the satisfaction of creditors, different devisees, in respect 34. Legatee's remedy against heir. As to a charge on all the estate devised, must between a legatee, either pecuniary or specific, contribute on a deficiency of assets, in pro- and the heir at law, if a debt chargeable both portion to the value of their respective inter- on the real and personal estate is paid by the ests; e. g., to pay an annuity to the widow of executor out of the personal property, the legthe testator, or debts remaining unsatisfied, atee may, to the extent of the personal estate after the personal property, and all the real so appropriated, recover the amount of his legproperty not devised, has been exhausted. [1acy out of the real estate descended to the heir. P. Wms., 403, 505.] Chancery, 1817, Living-[2 Cas. in Ch., 117; 1 P. Wms., 730; Ca. Temp. ston v. Livingston, 3 Johns. Ch., 148. Talb., 53; Lowndes on Leg., 393.] Chancery, 1832, Mollan v. Griffith, 3 Paige, 402.

27. Priority of judgments. If a suit at law and a bill in chancery are prosecuted against heirs or devisees, the dates of the judgment and decrees respectively, determine the priority between the creditors. Chancery, 1829, Pardy v. Doyle, 1 Paige, 558.

Liability for Debts, etc., of Decedent;-Under the Revised Statutes.

titled to share in the assets of his estate; and Ct., Sp. T., 1854, Hollister . Hollister, 10 so include his widow. Supreme Ct., Sp. T., | How. Pr., 532. 1857, Merchants' Ins. Co. v. Hinman, 4 Abbotts' Pr., 312; S. C., 15 How. Pr., 182. See, also, a further decision in S. C., 13 Abbotts' Pr., 110.

39. If, after the expiration of that time, suit is brought, upon proof of an application having been made, before its expiration, for an order of portion thereof for which the heirs or the sale, &c., of the decedent's real property, such devisees respectively are liable, after satisfysuit to be stayed. Further proceedings thereon.ing all legal priorities, and the proportionate 2 Rev. Stat., 109, § 53.

Remedy against Legatees, etc., for Decedent's Debts.

Stat., 90, § 42; and see Baggott v. Boulger, 2
Duer, 160.

55. Collateral security. It is no defence to an heir, who is sued on the bond of his an

48. Devisee cannot be called upon to pay the testator's debt, until the creditor has exhausted his remedy against the executors or legatees, and also has exhausted his remedy against the real property descended. Ct. of cestor, that there is a mortgage collateral to Appeals, 1847, Wambaugh v. Gates, 1 How. App. Cas., 247; affirming S. C., 11 Paige, 505. 49. The issuing of execution upon a judgment recovered against the executors does not exhaust the remedy against them for personal estate which has come to their hands and has been misapplied by them. Ib.

the bond out of which the debt can be made, and to which the creditor has not resorted. Supreme Ct., 1858, Roosevelt v. Carpenter, 28 Barb., 426.

56. Decree. Under 2 Rev. Stat., 454, a final decree against heirs or devisees, for the debt of the decedent, has priority over liens upon the lands descended or devised, for the debts of the heir or devisee; and a sale under such decree overreaches all liens and alienations made or suffered by the heir or devisee. Chancery, 1831, Morris v. Mowatt, 2 Paige,

50. Remedy must be exhausted. An action for a debt of the estate cannot be brought against the heirs or devisees until the personal assets have been exhausted, or are shown to be insufficient; and the heirs or devisees cannot be joined with the executors in such an ac-586. tion. It makes no difference that the same 57. against proceeds. A creditor of persons are entitled to the whole estate real the ancestor, who was entitled to maintain a and personal. [3 Comst., 261.] Supreme Ct., suit against heirs in respect of the real estate 1851, Stuart v. Kissam, 11 Barb., 271; re- descended to them, was allowed a decree versing S. C., 2 Id., 493. S. P., Ct. of Ap- against proceeds thereof, paid into court upon peals, 1850, Mersereau v. Ryerss, 3 N. Y. (3|a judicial sale. A. V. Chan. Ct., 1846, Van Comst.), 261; and see Gere v. Clarke, 6 Hill, Wezel v. Wyckoff, 3 Sandf. Ch., 528. 350. 58. Lands aliened by heirs or devisees, in 51. Non-resident administrator. A cred-good faith, before suit brought against such itor proceeding against heirs for a debt of heirs or devisees, for a debt of the testator or their ancestor (2 Rev. Stat., 452, § 33), must ancestor, are not affected by a decree in the show affirmatively that the personal assets suit. As against a purchase under the judgwere insufficient, or that after due proceedings ment, the prior conveyance is presumed to before the surrogate, and at law, he was un- have been fairly made upon the consideration able to collect the debt. The fact that the expressed in the conveyance, and bona-fide. administrator was a non-resident, though it If it is claimed to be fraudulent, the burden might excuse the want of a suit against him, of showing it lies with the other side. Ct. of will not excuse the want of proceeding before Appeals, 1847, Wambaugh v. Gates, 1 How. the surrogate. Ct. of Appeals, 1850, Merse-App. Cas., 247; affirming S. C., 11 Paige, reau. Ryerss, 3 N. Y. (3 Comst.), 261.

52. A stipulation for a reference to state an account between the parties, and to take proof on other points in issue,-Held, not to be a waiver of the objection. Ib.

53. Lien. Debts of the ancestor are not a

lien until charged upon the land by the proper legal proceedings. The heir takes the absolute title, subject only to its being defeated by the creditors, or personal representatives, by proceedings pursuant to the statute. [3 Barb. Ch., 186, 195; 20 Johns., 414.] Supreme Ct., 1852, Wilson v. Wilson, 13 Barb., 252.

54. Neglect to present claim. A creditor who may have neglected to present his claims to the personal representative, may notwithstanding recover it of the next of kin and legatees. 2 Rev.

505.

59. Right of contribution in equity between several heirs or devisees in a peculiar case of mistake. Chancery, 1841, Schermerhorn v. Barhydt, 9 Paige, 28.

As to the rules of Pleading, and for other cases as to the proper Parties, see those titles.

LEGISLATION.

1. In the colonial legislation, statutes enacted by the assembly and approved by the governor and council, were valid and operative immediately; they continued in force unless they were disapproved by the king; and

5. The nature of those usages and customs by which the proceedings of legislative bodiester of credit was a guaranty, executed at the are regulated,-considered. Ib.

person who acts upon it; where a letter is specially directed to a particular person, no other person can, by volunteering to act upon it, create any legal obligation against the writer. Supreme Ct., 1843, Birckhead v. Brown,* 5 Hill, 634.

10. A letter to a dealer in leather, in behalf of M., a shoemaker, saying: "Sir, I will be responsible for what stock M. has had or may want hereafter, to the amount of $500,"-Held, a continuing guaranty, and not exhausted by purchases of and payments for stock to the amount mentioned. [3 Den., 518; 2 Hall, 197; 7 Pet., 113; 1 Metc., 24; 3 Campb., 290; 5 Conn., 149; 6 Bingh., 244; 9 Id., 618; 5 Mann. & Gr., 560; 6 Adolph. & E., N. S., 917.] Ct. of Appeals, 1855, Gates v. McKee,

5. Where three successive letters of credit were written by the defendants to the same person, the second and third referring to the first, and requesting that the amount of the credit and the time of its continuance should be enlarged;-Held, that the terms of 13 N. Y. (3 Kern.), 232.

the first letter, as to the mode of making 11. Notice of acceptance. Unless there drafts, applied equally to the enlarged credit, is something in the nature or terms of the though the other letters were silent on the writing, creating or implying the necessity of subject. Ib. acceptance or notice, as a condition of liability, neither are deemed requisite. [2 Hall, 197; 12 Mass., 156.] Supreme Ct., 1840, Whitney v. Groot, 24 Wend., 82.

6. What are continuing guaranties. A letter of credit in these terms: "If D. wishes to take goods of you, on credit, we are willing to lend our names as security, for any amount he may wish," does not extend beyond the first parcel of goods delivered; and if the bearer of it, having obtained and paid for several parcels of goods, afterwards takes another parcel, and fails in the payment, the drawers are not liable. Supreme Ct., 1811, Rogers v. Warner, 8 Johns., 119. Followed, 1840, Whitney v. Groot, 24 Wend., 82.

7. A guaranty of any bills of merchandise A. has purchased, or may purchase from B., "she to have ninety days' credit, the amount of this guaranty not exceeding $200, and to expire in one year from date," is continuing during the year. N. Y. Superior Ct., 1829, Clark v. Burdett, 2 Hall, 197.

8. Where no time is fixed, and nothing in the instrument indicates a continuance of the undertaking, the presumption is in favor of a limited liability as to time, whether the amount is limited or not. [16 Pet., 537; 1 Mas., 323.] Ct. of Errors, 1846, Fellows v. Prentiss, 3 Den., 512. To similar effect, Supreme Ct., 1840, Whitney v. Groot, 24 Wend., 82. Compare Agawam Bank v. Strever, 18 N. Y. (4 Smith), 502; reversing S. C., 16 Barb., 82.

12. Where the guaranty or letter of credit is absolute, no notice of acceptance is necessary. Ct. of Appeals, 1850, Union Bank v. Coster, 3 N. Y. (3 Comst.), 203: affirming S. C., 1 Sandf., 563. To the same effect, Supreme Ct., 1840, Douglass v. Howland, 24 Wend., 35; 1844, Smith v. Dann, 6 Hill, 543.

13. Dissolution of drawee's firm. If, after a letter of credit is drawn on a partnership, the partnership is dissolved, the drawer is not liable to one of the late firm, who on his own account gives credit on the faith of the letter. [7 T. R., 254; 10 Johns., 180.] Supreme Ct., 1819, Penoyer v. Watson, 16 Johns., 100.

14. Departure from terms. If a letter of credit be addressed by A. to B., for the delivery of goods to C., and B. delivers a part, and procures others to furnish the residue, A. is responsible to B., only for the goods which B. delivered. Supreme Ct., 1809, Robbins v. Bingham, 4 Johns., 476. To the same effect, 1813, Walsh v. Bailie, 10 Id., 180.

15. Where A. gave B. a letter of credit for a certain sum, to be used by B.'s bills, payable at sixty days' sight,—Held, that A. was not liable for B.'s bills at ninety days' sight. Supreme Ct., 1848, Birckhead v. Brown,* 5 Hill, 634.

9. An agreement to be responsible for goods delivered to a third person, will not be deemed a continuing undertaking, unless its language clearly indicates that such was the in-sideration, see GUARANTY. tention of the parties. N. Y. Com. Pl., 1850, Dixon v. Frazee, 1 E. D. Smith, 82.

As to the necessity of the Expressed con

Affirmed, Ct. of Errors, 1845, 2 Den., 375.

As to actions for False recommendations to credit, see DECEIT.

*Affirmed, Ct. of Errors, 1845, 2 Den., 875.