text:
    Schermerhorn, executor, &c. vs. Barhydt and others.
    Whore the creditor of a deceased debtor, previous to the adoption of the revised statutes, commenced an action against the four devisees of the decedent to recover his debt out of the lands devised to them respectively, in severalty, and the sheriff returned the writ served upon three of the defendants only and as to the other that he was not found, but the creditor, instead of taking out new process and having it served upon the last named defendant, proceeded as authorized by statute in the case of joint debtors, and took a judgment by default, and entered it up against all the defendants, and took out an execution thereon ; upon which execution the sheriff advertised and sold all the right and title of the defendants to a house and lot which had been devised in fee to the defendant who had not been served with process» and all their right and title to a pasture lot which had been devised to one of the other defendants for life, but the remainder in fee in which pasture lot had descended to all the defendants, and some others, as the heirs at law of the deceased debtor; and the plaintiff in such judgment became the purchaser of the house and lot, and the devisee for life became the purchaser of the pasture lot at such sale; Held that the sheriff’s deed, under the judgment and execution, conveyed no right or interest in the house and lot, to the judgment creditor; such judgment being wholly void and inoperative as to the lands or property of the defendant who was not served with process. Held also that, in equity, the amount bid upon that house and lot was not an extinguishment of any part of the plaintiff’s debt which was originally due from tire decedent; it not appearing that the plaintiff, at the time of the sheriff’s sale, was aware of the fact that by the will the defendants who had been served with process had no estate or interest in that part of the property of the testator. Held farther that the purchase of the pasture lot, by the'devisee for life who had a valuable interest therein to be affected by the sale, and who must bo presumed to bo cognizant of the terms of the will under which he derived his title, was a satisfaction of the plaintiff’s judgment and debt to the extent of the bid ; although the plaintiff took the bond and mortgage of the purchaser for the amount of his bid, in lieu of the money.
    Although a judgment by default against heirs or devisees previous to the revised statutes became a personal claim against them and tbeir property generally, as well as a lien upon the estate descended or devised to them, the recovery of such a judgment against a part of the heirs or devisees, without an actual satisfaction thereof, was not in equity an ex-tinguishment of the whole debt as against the other heirs or devisees; but only of so much thereof as the defendants in the judgment were equitably bound to pay as between them and the other heirs and devisees, and which could have been collected by the plaintiff under such judgment.
    Where several devisees or heirs are bound to contribute equally, or rateably, towards the satisfaction of a debt due from the testator or intestate, if the creditor recovers a judgment against a part of such devisees or heirs for his whole debt, which judgment is a lien upon lands sufficient to satisfy the portion of the debt which the defendants in such judgment are equitably bound to pay, and then suffers his judgment to lie until the defendants therein have disposed of the properly on which it was a lien and such lien is extinguished, the other heirs or devisees or their property, are not liable in equity to pay the creditor his whole debt, but only their rateable proportions thereof.
    Under the provisions of the revised statutes, heirs and devisees who have not aliened any part of the property descended or devised to them cannot be charged personally for the debts of the testator or intestate ; nor arc they personally liable to 'contribution for the payment of such debts. The judgment or decree can only direct a satisfaction of their portion of the debt out of the estate so descended or devised.
    Each creditor of the decedent, under the provisions of the revised statutes, is to proceed separately to recover a judgment or decree, to obtain a rateable proportion of his debt against the heirs or devisees respectively. And the defendants respectively, in their answers, may show that there are other unsatisfied debts of the decedent belonging to the same or to a prior class.
    Where infants are defendants in a suit brought by a creditor of the decedent against heirs or devisees, a reference should be directed to enquire whether there are any other creditors belonging to the same class with the complainant or to a prior class; although the infants in their answers have not set up that fact as a defence pro tanto.
    To entitle a creditor of the testator to file a bill against the devisees for the recovery of his debt out of the real estate devised, he must not only show that the personal estate was not sufficient to pay the debts, or that he has exhausted his remedy against the personal representatives of the decedent, but he must also show that the real estate which descended to the heirs at law was insufficient, or that he has exhausted his remedy against such heirs.
    A creditor of the decedent cannot file a bill against the devisees jointly with the heirs, without averring therein that the real estate descended to such heirs was insufficient to pay the debts which remained after exhausting the remedy of the creditors against the personal estate. Where the complainant comes into the court of chancery to enforce an equitable claim against heirs or devisees, which equity arises from transactions which have taken place subsequent to the death of the testator or intestate, it is not necessary that he should comply literally with all the requirements of the revised statutes relative to suits against heirs and devisees. It is sufficient if they are complied with in substance, so far as they are applicable to the case made by the bill and may affect the cqui. table rights of the complainant against any of the defendants.
    March 16.
    This was an appeal by James Barhydt, one of the defendants, from a decretal order of the vice chancellor of the third circuit. The object of the suit was to obtain satisfaction of a bond debt of about $700 which was due to W. Adams, the complainant’s testator, from John J. Barhydt deceased, the father of the appellant, at the time of his death. John J. Barhydt died in December, 1813, possessed of considerable real estate, but not leaving sufficient personal property to pay his debts. He left four sons— James, Jeronimus, John S., and Henry, and two daughters— Alida Van Dyck, and Mary the wife of G. Clow, his only children and heirs. By his will he devised to his son James, the appellant, his brick house and lot in Green-street, in the city of Schenectady, and half a morgan of land adjoining the same; subject to the payment of ¿6200 to Henry and to the use of the house by Henry for the term of two years. He also devised to Jeronimus two lots of land ; and to John S., the upper half of his farm, about six miles from Schenectady, and the other half thereof to the son of John S.; and charged John S. with the payment of legacies to the amount of ¿£500, to Henry and hrs~iwo sisters and a daughter of one of the sisters. He also devised to Henry his pasture lot purchased of Maybie, containing about eleven acres ; and the residue of his lot north and adjoining the land devised to the appellant. But the devises to Jeronimus and Henry contained no words of inheritance. Those devisees, therefore, only took life estates in their respective lots; and the reversion in those lots descended to the heirs at law of the testator. The son of John S. to whom the lower half of the farm was devised, died unmarried and intestate in 1817, leaving his father his heir at law.

      After the death of John J. Barhydt, Adams commenced an action of debt] upon his bond, in the supreme court, against the four sons, as devisees of the real estate of their father. The process was not served upon the appellant, who resided in another county; and the sheriff returned the writ, as to him, not found. The plaintiff proceeded, however, as if it had been a cáse of joint indebtedness, and took a judgment by default against all the defendants, in November, 1816, for Lthe penalty of the bond, and for $27,15 damages and costs. An execution was issued on that judgment, upon which the sheriff advertised and sold all the right, title and interest of the defendants in the judgment, to the brick house and lot and half a morgan of land devised "to the appellant, and the pasture lot of about eleven acres, which by the will was devised to Henry. Adams became the purchaser of the premises devised to j the appellant,-at the price of $200, and received the sheriff’s deed therefor, on the first of May, 1822. And Henry Barhydt became the purchaser of the eleven acre pasture lot, for the sum of $500, and received the sheriff’s deed therefor on the 7th of June, 1822. By an arrangement between Adams and Henry Barhydt, instead of receiving the money for the bid of the latter upon the execution of the sheriff’s deed to him, Adams agreed to convey to Henry the lot purchased by the former at the sheriff’s sale, and to take the bond and mortgage of Henry on both lots, conditioned for the payment of $1032 ; which was the whole amount of principal and interest due upon the judgment. This agreement was carried into effect, and Henry executed his bond and mortgage upon the two lots on the 7th of June, 1822; conditioned to pay the $1032 in two years from that date, with interest thereon annually.
    Henry Barhydt died in November, 1824, without having paid any part of the principal or interest upon his bond and mortgage, insolvent and intestate, leaving eight children ; all of whom were made defendants in this suit except his daughter Elizabeth, who had died intestate and without issue before the commencement thereof. In June,
      1825, Adams filed a bill in this court against the heirs at law of Henry Barhydt to foreclose his mortgage ; in which suit he made James Barhydt a party defendant. The appellant put in an answer to that bill, claiming one part of the mortgaged premises as belonging to him solely, as the devisee of his father, and the sixth part of the other lot as one of his heirs at law ; and insisting that the judgment, as to his interest in the mortgaged premises, as such devisee and heir, was wholly inoperative and void. Adams thereupon paid the appellant’s costs in the foreclosure suit; but did not discontinue the suit as to any of the defendants therein. In February, 1827, he made an ex parte application to the supreme court and obtained an order vacating the judgment; and in 1828, he commenced a new suit on the bond against the surviving heirs and devisees of John J. Barhydt, and the heirs at law of his deceased son Henry, to obtain satisfaction thereof out of the estate devised or descended to them. The appellant appeared and pleaded in bar of that suit the recovery of the former judgment against bis three brothers upon the bond, in 1816. And the supreme court having set aside the order vacating the judgment, Adams was compelled to abandon the second suit commenced by him upon the bond ; and he was non pressed therein as against the appellant, in November, 1828. Adams having died, the complainant, as his executor, filed his bill in this cause, in December, 1831, against the surviving children of John J. Barhydt, and the surviving heirs of Henry Barhydt, stating these facts and praying relief in a great variety of forms; and concluding with a prayer for general relief. The appellant appeared and answered the bill; and some of the children of Henry Barhydt who were infants, put in an answer by their guardian ad litem. And as to the other defendants the bill was taken as confessed.
    The answer of James Barhydt, the appellant, admitted that the personal estate of his father was not sufficient to pay his debts, as stated in the bill, and most of the other facts therein charged. But he insisted that the judgment was void as against him and the estate which came to him by devise or descent from his father; he not having been served with process and never having appeared in the suit in which such judgment Was recovered. He also set out, in his answer, the several devises which his father made of the lands of which he died seized, describing the lands and the interest which he claimed therein as devisee or heir.
    He alleged that he had never been in possession of any of the lands devised or descended to him 5 but that he had filed a bill in this court against the other defendants, to ascertain and settle his rights as heir at law of his father, and to have a partition of such lands as he was entitled to an interest in as a tenant in common with them. And he claimed and insisted that the complainant was not entitled to equitable relief as against him, or the estate so devised or descended to him from his father. The cause was heard upon pleadings and proofs as to the defendants who had appeared and answered, and upon the bill taken as confessed as to the other defendants ,• but the defendant John S. Barhydt appeared by his counsel upon the hearing.
    The vice chancellor declared and decreed' the sheriff’s sales, and the deeds under the same, and the bond and mortgage given to Adams by Henry Barhydt, to be absolutely void, and that they should be annulled and set aside.
    And he directed a reference to a master to compute the amount due to the complainant for the principal and intererest on the original bond given to Adams by the appellant’s father; and to ascertain the location, quantity, and value of the real estate of which John J. Barhydt died seized, and the amount of the incumbrances thereon, and to whom the same descended or was devised, and whether the same or any part thereof had been aliened by the heirs or devisees, and the separate value of each portion so descended or devised to the several heirs or devisees. The decree also directed the master to take and state an account of what might be due to other creditors of John J. Barhydt at the time of his death, whether by judgment, mortgage., or otherwise; and to ascertain whether any such debts were still valid and subsisting claims against the estate. And the decree further directed the master to apportion the amount due to the complainant among the heirs at law of John J. Barhydt, in proportion to the value of the real estate descended to such heirs respectively, and to apportion the complainant’s costs and the costs of the guardian ad litem of the infant defendants among such heirs in proportion to the debt which should be recovered against each; that upon the confirmation of the master’s report, the complainant should have execution against the heirs at law respectively for the amount of the debt and costs so recovered against each. The decree also contained a further provision that if the monies arising from the sale of the real estate descended to the heirs respectively, should be insufficient to pay the debt and costs, or in case of a deficiency arising from the alienation of any part of the lands descended and the inability of the complainant to collect the value of the estate so aliened, from the heir by whom such alienation was made, or of a deficiency arising from both causes, the complainant should be at liberty to apply to the court for further relief as to such deficiency against the devisees or the heirs at law or both ■ and reserving to the several defendants the right to apply to the court to settle their respective rights and claims to contribution as between themselves.

      H. Bleecker, for the defendant James Barhydt.
    The defendant James Barhydt not having been arrested in the suit against the devisees of John J. Barhydt on the bond mentioned in the pleadings, the judgment in that suit was absolutely void as against him or his estate, or any estate derived by him from John J. Barhydt, either as his heir or devisee. (5 John. Rep. 41. 15 Id. 141. 9 Cowen, 227, 229. 1 Dunl. P. 126. 1 R. L. 317, § 4. Bac. Abr. title Heir and Ancestor,H. 1 Cowen, 734. 2 Id.569. Id.71.) The judgment was an extinguishment of the bond. (1 Wend. 102.) The execution was not in pursuance of nor warranted by the judgment. And the sale under the judgment of James Barhydt’s property was utterly void. In so far as the judgment was valid against other persons than the defendant James Barhydt, it remains in force. Adams, the obligee, by proceeding on the bond, has elected to discharge the defendant James Barhydt and his property from all claim he or his representatives could have on the bond. And having obtained a judgment against such of the devisees as he chose to have arrested and made liable, his representative cannot now have any remedy in this court. Here was no mistake of fact. This court does not relieve parties from their acts fairly done on a full knowledge of the facts, though under a mistake of law. (Lyon v. Richmond, 2 John. Ch. R. 51. 4 Id. 566. Cooper, 276, 272. 2 Mad. 281. 2 John. Ch. R. 544. 3 Id. 351. 6 Id. 87.) No decree can be made in any way to affect the defendant or his estate, nor should he or his estate be charged with any costs of this suit. If the complainant could now have a remedy in this court, the bill does not contain the allegations and set forth the facts required by the revised statutes. The bill heretofore filed hy William Adams against James Barhydt and the other defendants in the pleadings mentioned, not having been dismissed, this present suit cannot be maintained. (Cooper, 272,276—270,271. 2 Sel. Pr. 461. 3 Black. Com. 290.) The judgment on the bond was docketed in November, 1816. This bill was filed in December, 1830. Any new remedy is completely barred by the lapse of time and the consequent presumption, and by the statute of limitations, as adopted and applied in this court. (Kane v. Bloodgood, 7 John. Ch. R. 70, and the authorities cited in argument and by the chancellor in that case.)

    The judgment obtained on the bond was a general judgment against all the defendants who were arrested, and was a lien on all their lands, and warranted an execution de bonis propriis against them, and there is nothing in the bill or proofs to show that since such judgment was obtained the plaintiff in the judgment might not by due effort and diligence have obtained satisfaction thereof from the property real or personal of the defendants who w ere arrested on the mense process. The decision of the supreme court mentioned in the answer, (1 Wendell, 102,) must be considered as res adjudicata. The evidence of the belief of Adams concerning the effect of the deeds under the sale on the judgment is wholly insufficient, as it was impossible for the witness to know what Adams believed, and there is no proof of any misrepresentation or misinformation. In so far as the decree of the vice chancellor grants relief different from that prayed for, it cannot be sustained, as the prayer for general relief is in the conjunctive. (Colton and others v. Ross and others, 2 Paige, 396.)

      Jl. G. Paige, for the complainant.
    The complainant is entitled to the relief granted by the vice chancellor, and his decree can be sustained as against all the defendants upon the ground of the mistake of the testator, William Adams; he supposing that the purchasers at the sheriff’s sale were purchasing a fee simple, and being ignorant of the fact of the title of the defendant, James Barhydt, to the house and lot, and of the fact that the pasture lot on the death of Henry Barhydt passed to all the heirs of John J. Barhydt, in fee. This mistake was a mistake in fact; but if it was a mistake in law, it would furnish a ground of relief; as the rule in equity now is, that relief will be given where the mistake is one purely of law. This mistake, whether of Jaw or fact, is admitted by all the defendants, except James Barhydt and the infant children of Henry Barhydt; and they in their answers do not deny it. (2 McCord’s Ch. R. 463. 2 Bailey, S. C. R. 623. 1 Hill. Ch. (S. C.) 250. 16 Ves. 72. 1 Ves. jr. 126. 3 P. Wms. 320. Moseley, 364. 1 Sim. & Stu. 561. 4 Little. Ken. R. 127. 8 Wheat. 205, 216. 14 John. R. 526.) The ignorance of William Adams of the true state of the title is a sufficient excuse for his not commencing his first suit against all the heirs and devisees of John J. Barhydt. The complainant has a clear remedy in equity by analogy to the statute remedy, provided in cases of eviction in section eleven, (1 R. L. 504,) as chancery in cases of concurrent jurisdiction follows the rules of law, and where it gains jurisdiction for one purpose, it will retain the bill generally. (10 John. R. 587. 7 John. Ch. 90. 3 Id. 129. 4 Id. 636. 1 Sch. & Lef. 429. 10 Ves. 460. 15 Id. 438.) Chancery has jurisdiction of this case upon several grounds. It is a proceeding against heirs and devisees for the sale and distribution of the real estate descended and devised to pay the debts of the ancestor. It may be regarded as a bill to remove a cloud upon the title. It asks for relief upon the ground of mistake. The remedy at law is doubtful and difficult. Unless the complainant has a remedy in chancery, there will be a failure of justice. And the defendant, James Barhydt, is taking an unconscientious advantage of the peculiar circumstances in which the complainant is placed. The bill may be sustained as a bill of foreclosure. No objection can exist to a decree for the sale, in payment of the complainant’s debt, of five-sixths of the pasture lot, and also of five-sixths of all the other lands of John J. Barhydt, deceased, which descended to his heirs at law, (being the shares of all his heirs except James Barhydt,) and also of all the lands of said John J., which were devised by him to his sons Henry, Jeronimus and John S. Barhydt; the said Henry, Jeronimus and John S. Barhydt having been arrested in the suit on the bond, and the bill having been taken as confessed against Alida Yan Dyke and Gilbert Clow and wife, and the said Jeronimus and John S. Barhydt, and the adult heirs of Henry Barhydt.
    If the complainant’s remedy should only be against John S. and Jeronimus Barhydt, and the heirs of Henry Barhydt, still James Barhydt is a proper party, as they would in equity be entitled to contribution from him; and in order to avoid multiplicity of suits, it would be proper that the equities as between each other should be settled in this suit. (2 Paige, 84, 87, 92. 2 John. Ch. R. 397. 5 Id. 254. 1 Id. 409, 425.) The judgment on the bond, if not disturbed, is no bar to relief. A bill may be filed against heirs and devisees upon a judgment for a debt of the ancestor • and an heir or devisee not arré'sted in the suit at law, may be made a party to the bill in equity, and compelled to contribute to the payment of the complainant’s debt, he not being discharged in equity, although he may be at law. In equity the judgment is not, as to James Barhydt, an extinguishment or merger of the bond. Besides, if the judgment interposed a technical difficulty in the way of justice, chancery has the power of setting it aside. (4 John. Ch. R. 619. 5 Id. 494. 2Atk. 33. 10 Ves. 209, 227. 2 Merv. 36. 2 John. Ch. 508, 511. 2 Id. 397. 5 Id. 254. 18 John. R. 477. 6 Id. 98. 6 Crunch, 253. 4 John. Ch. 334. 6 Id. 21. 1 Id. 425. 5 Paige, 505. 18 John. R. 484.) William Adams, after he discovered his mistake, sought his remedy at law, which was denied. A court of equity is therefore now the proper and only court in which to obtain relief. And the defendant James Barhydt, having put in an answer instead of demurring, cannot object that the complainant has an adequate remedy at law. (2 John. Ch. 339. 2 Pick. 509. 17 John. R. 381. 6 John. Ch. 479, 90. Mitf. 113.) James Barhydt cannot object to a decree setting aside the execution, sheriff’s sale, and all subsequent conveyances, as in his answer he alleges they are all inoperative, illegal and void. The execution was not warranted by the judgment, and was therefore void, and the sheriff’s sales, and sheriff’s deeds, were consequently nullities. (1 Cowen, 738.) The bill contains all the necessary allegations required in a bill filed under the revised statutes by a creditor against heirs and devisees as to deficiency of personal estate; a description of the real estate of which John J. Barhydt died seized, &c. The will of John J. Barhydt mentions all his real estate, a copy of which is set out in the bill. But beyond question, the bill contains every allegation required in a creditor’s bill against heirs and devisees, by the law as it stood before the adoption of the revised statutes ; which law must govern this case. (4 John. Ch. 647. 5 Id. 235.) Even if the bids at the sheriff’s sale are to be deemed a satisfaction of so much of the judgment, there yet remains a balance due thereon of above the sum of four hundred dollars, for which James Barhydt is liable. As to this sum, therefore, he is a proper party, and is liable to pay his proportional share thereof. And he may even be compelled to contribute an amount to the payment of this sum equal to bis full proportion of the whole debt. Only James Barhydt, one of the heirs and devisees, has appealed from the vice chancellor’s decree : the decree cannot, therefore, be disturbed as to the other heirs and devisees ; but may be enforced as against them.

      J. Rhoades, for John S. Barhydt.
   The Chancellor.

Cases seldom occur, even in this court, where such a complication of conflicting rights and entangled equities are presented as in the one which is under consideration upon this appeal. And the difficulty of properly settling and adjusting - them in this suit is considerably increased by the provisions of the revised statutes relative to the proceedings of creditors against heirs and devisees. It is not improbable, therefore, that I may have erred in some of the conclusions at which I have arrived, as to the legal and equitable rights of the parties to this bill; as I think the vice chancellor has done in some of the provisions of the decree which is appealed from.

The case of Jackson v. Hoag, (6 John. Rep. 59,) and of Whitaker v. Young, (2 Cowen's Rep. 569,) have long since settled the point that the statute relative to proceedings against joint debtors, where a part of the defendants only are served with process, is not applicable to suits at law against heirs and devisees who are sued for debts due from the testator or intestate. And according to the decision in the first case, the sheriff’s sale to Adams conveyed no right or interest whatever in the brick house and lot on Green-street, or in the half morgan of land which were devised to the appellant in fee, I am inclined to think, therefore, that the amount bid by Adams upon that part of the property ought not in equity to be considered as a payment of any part of the debt due upon his judgment; and that the decree is right in setting aside that part of the sale, and the deed given by the sheriff in consequence thereof, as wholly inoperative and void.

Although it is at least doubtful whether any court can relieve against a mistake arising from mere ignorance of law, this court can relieve a party from the consequences of a mistake of fact. And there is room for doubt in this case whether Adams had seen the will of John J. Barhydt, at the time of the sheriff’s sale, so as to be fully cognizant of the fact that the premises which he was purchasing had been devised in fee to that one of the defendants in the suit against whom the judgment, upon its face, was wholly inoperative, on the ground that the writ was returned, as to him, non est inventus. The statute which was then in force, authorizing the supreme court to relieve certain purchasers at sheriffs’ sales who should be afterwards evicted from the lands purchased on account of irregularities in the proceedings, or want of title in the person against whom the execution issued, (1 R. L. of 1813, p. 594, § 11,) does not appear to have contemplated the case of a purchase by a party to the judgment; who is presumed to be cognizant of the proceedings which have been had in the suit. But the principle of that statute was wholly inconsistent with the idea that a sale of land in which the parties to the judgment had no estate or interest whatever, and which had been bid in by the plaintiff in the judgment under a misapprehension of the fact, should in equity be considered as a payment of the judgment, to the extent of such bid. In Lansing v. Quackenbush, (5 Cowen’s Rep. 38,) the supreme court refused to interfere in such a case upon motion; saying that the proper forum to apply to for relief was a court of equity. Subsequent to the commencement of the present suit, however, the supreme court has decided that it will relieve the plaintiff in such cases, on special motion. (See Mulks v. Allen, 12 Wend. 253.) So far, however, as relates to the property purchased by Henry Barhydt under the execution, there is no ground whatever for setting aside the sale ; as there is no allegation in the complainant’s bill that the purchaser in that case was not fully aware of the situation of the property and the rights of the several defendants in the judgment therein. And the subsequent arrangement between him and Adams, by which the latter took a bond and mortgage for the full amount of the judgment, instead of requiring payment of the bid when the property was conveyed by the sheriff to the purchaser, could not prevent that purchase from operating in favor of the other defendants as a satisfaction of the judgment fro tanto. Although the judgment was void as against the property of James Barhydt, who was not served with process, it was nevertheless a valid judgment as against his three brothers ; each of whom had a valuable interest in the premises bid in by Henry and conveyed to him by the sheriff. In addition to his own life estate in the eleven acre pasture lot, under the will of his father, Henry was entitled to a remainder in fee in one-sixth of the premises after the termination of such life estate, as one of the heirs. And his brothers John S. and Jeronimus were each entitled to a similar remainder in fee in one-sixth of the premises, as heirs at law. All those interests were vested in Henry, by the sheriff’s deed to him, and the complainant has a valid and subsisting claim thereon which he can enforce by a sale under the mortgage. The part of the decree therefore which sets aside the sale to Henry, and the conveyance by the sheriff to him, and the mortgage of the interest which he thus acquired therein, was erroneous and must be reversed. And the judgment must be deemed to be satisfied to the amount of Henry’s bid of $500, from the time of the sheriff’s sale to him ; after deducting from such bid the sheriff’s fees on the execution. The title to the other three-sixths of that lot, subject to Henry’s life estate therein as devisee, was in the appellant and his two sisters, as heirs at law of their father, and was not affected by the sheriff’s sale,

The judgment recovered upon the bond in 1816, having been recovered upon the default of the defendants who were served with process therein, was not only a valid lien upon all their interests in lands which had come to them by devise or descent from their father, but it became also a personal debt against each of them, so as to create a valid lien upon any other real estate which they or any of them owned at the time of the docketing of that judgment. The appellant, therefore, insists that the recovery of that judgment extinguished all claim against him, upon the bond,-as one of the heirs of the obligor to whom assets had come by descent and devise. Such was undoubtedly the effect of that judgment at law. And if the complainant or his testator has lost his remedy under that judgment, by neglecting to proceed to collect the judgment against those defendants or their property, or has suffered them to sell or incumber their lands which ought to have been levied upon and sold under execution while the judgment was a valid lien thereon, neither the appellant, nor the property which has come to him from his father by devise or descent, can be liable in equity to make good the loss, beyond his proportionate share in reference to the property which came to him as one of the heirs. That part of the decree which authorizes the complainant to apply for further relief against the parties who have contributed their full shares towards the satisfaction of the debt, in case there shall be a deficiency arising from alienation or otherwise in paying the shares of other parties, is unquestionably erroneous as respects the appellant. That provision of the decree also appears to be inconsistent with the statute on the subject of proceedings against heirs and devisees. (2 R. S. 455, § 52.)

But if the whole amount of the debt due from the ancestor of the defendants had been paid by the three sons against whom the judgment was recovered, or either of them, the defendant who had thus paid the whole debt would have been entitled to call upon the other heirs at law for contribution, in proportion to the value of the lands which each had received by descent, not exceeding the actual value of such lands. For this reason I think the recovery of the judgment against a part of the heirs, without actual satisfaction thereof, except as to the $500 bid upon the sale to Henry Barhydt, was not, in equity, a discharge of the whole debt as against the other heirs of the obligor in the bond.

A similar remark may be made in reference to the objection that the giving of the bond and mortgage by Henry Barhydt, for the whole amount of the debt and costs, was a novation, or extinguishment of the original indebtedness.

As Henry was one of the debtors, who by suffering a general judgment to pass against him without showing the particular property which had come to him by devise or descent had become personally liable for the payment of the whole debt, a payment of the bond and mortgage by Mm would undoubtedly have been a satisfaction of the judgment at law as well as in equity ; so far as the rights of the judgment creditor were concerned. But as Henry stood in the situation of a mere surety for the other heirs and devisees, so far as the property which they had received by descent or devise was bound to contribute for the payment of the debt due to Adams, if he had paid the bond and mortgage in full he would have been entitled to claim contribution, against such heirs and devisees, even at law. And in equity he would have been subrogated to all the rights and remedies of the original creditor against the other heirs and devisees, and the property devised or descended to them, to that extent, as well as against his co-defendants in the judgment who had also become personally liable to the plaintiff in that judgment. (Cuyler v. Ensworth, 6 Paige’s Rep. 32. 1 Story’s Eq. 477, § 499.) This principle of equitable substitution is distinctly recognized and adopted by the legislature in the provisions of the revised statutes relative to contribution between several persons, whose lands are bound by a judgment. (2 R. S. 376, § 72.) As the bond and mortgage in this case were not in fact valid and available securities for the whole amount of the judgment, and Adams took such bond and mortgage under a misapprehension of fact as to the Hen of the judgment upon the brick house and lot on Green-street, I think in equity his executor has a subsisting claim against the other heirs and devisees, or rather against the lands descended or devised to them, for their proportions of the original debt which was not satisfied by the sale to Henry Barhydt of his life estate in the pasture lot, and of the remainder in fee of himself and his co-defendants in the same premises, which passed under the sheriff’s deed to him. And as John S. Barhydt and Jeronimus Barhydt W7ere peisonally liable to Adams upon the judgment, they may in equity be liable for any deficiency which may exist after applying the assets which came to the hands of all the heirs and devisees of John J. Barhydt, to the satisfaction of the debt. But in no event can the appellant or his íyío sisters, if they had not aliened the estate which came to them from their father at the time of the commencement of this suit, have a personal decree against them ¡ nor can they be liable to contribution personally. For the statute is explicit, that if it appears that the lands, tenements, or hereditaments descended to an heir were not aliened by him at the commencement of the suit, the court shall decree his proportion of the debt to be levied of the real estate so descended to him; and not otherwise. (2 R. S. 454. 47. 7 Paige's Ref. 361.) It does not appear from the pleadings and proofs in this case that none of the lands descended to the appellant or his two sisters as heirs at law of their father had been aliened before the filing" of the complainant’s bill ; though it may perhaps be fairly inferred from the appellant’s ansvrcr that his interest in the lands descended to him had not been thus aliened. I, therefore, see nothing improper in that part of the decree which directs the master to ascertain and report upon that subject. But the decree should in terms have directed, that if it appeared from the report of the master that they had not aliened, the execution should go against the lands descended to them respectively, for their proportions of the debt; and not against them personally, or against their other property.

I think the decree was also erroneous in directing the master to take and state an account of all subsisting debts due to other creditors of the estate of John J. Barhydt; as subjecting the parties to an unnecessary expense. The revised statutes contemplate a proceeding by each creditor of the decedent separately, against his heirs, to obtain satisfaction of the debt, or the proportion thereof for which the heirs respectively are liable, after satisfying all legal priorities, and the proportionate claims of other creditors belonging to the same class. (6 Paige’s Rep. 259.) When such a suit therefore is commenced against the heirs, the defendants may show by their answers that there are other unsatisfied debts of the decedent belonging to the same or to a prior class. And in that case the decree against each heir is only to be for such portion of the debt as will be equal to the value of the estate descended, after satisfying prior claims thereon and a proportionate part of the debts of the same class. (2 R. S. 454, §39, 40.) Or if a defendant has paid any debt of the same class, or debt which was entitled to priority, he may set up that defence to the suit pro tanto. Even in such cases the decree should only direct an inquiry as to the subsisting debts, or the debts which have been paid by the heirs of the same class, or of a higher class than that of the complainant in the suit; so as to enable the court to determine the portions of the debt for which the several heirs are still liable, in reference to the value of the real estate descended to them respectively. As some of the defendants in this suit were infants, such an inquiry might have been proper, although no such defence was stated in their answers, or in the answer of the appellant; if such infants had not been the representatives of one of the defendants in the judgment, who by suffering such judgment to be rendered against him by default had rendered himself and his estate absolutely liable to the complainant for the payment of the whole debt, without reference to the amount of property he had received from his father.

In the case of Butts v. Genung, (6 Paige’s Rep. 254,) I had occasion to examine the provisions of the revised statutes relative to proceedings in this court against heirs and devisees, to enforce their legal liabilities to pay the debts of the intestate or devisor in respect to the lands descended or devised. I there came to the conclusion that it was no longer allowable for a creditor to file his bill against the personal representatives, and the heirs and devisees of the decedent jointly, either for the recovery of his own debt, or for the benefit of all other creditors who might think proper to come in under the decree. And that to entitle the complainant to obtain a decree against the heirs, or devisees, he must show by his bill that the personal estate of the decedent was not sufficient to pay his debts originally ; or that that the complainant had exhausted his remedy against the personal representatives without being able to obtain satisfaction of his debt. This construction of the statute was founded, in part, upon the section which declares that the heirs shall not be liable for any debt of the intestate unless it shall appear that the personal assets of the deceased were not sufficient to pay and discharge the same, or that after due proceedings before the proper surrogate’s court, and at law, the creditor had been unable to collect his debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatees. (2 R. S. 452, § 33.) The statute also contains a similar provision in reference to the liability of devisees ¡ which declares that they shall not be liable unless it shall appear that the personal assets of the testator, and the real estate which descended to his heirs, were insufficient to discharge the debt; or unless it shall appear that after due proceedings before the proper surrogate and at law, the creditor has been unable to secure such debt, or some part thereof, from the personal representatives of the testator, or from his next of kin or legatees, or from Ms heirs. (2 R. S. 455, § 56.) One section of the statute requires the heirs to be prosecuted jointly by the creditor, for the debt of the decedent; and another section declares that devisees shall be liable in the same manner and to the same extent as heirs. But there is nothing in the statute which, even by implication, authorizes the commencement of a joint suit against heirs and devisees; and without any averment in the bill that the real estate of the testator which had descended to the heirs at law was insufficient to pay the complainant’s debt.

In framing these provisions of the revised statutes, the revisers may not have intended to change the form of proceedings in this court against the heirs and devisees. For by referring to their notes, it will be seen that these statutory proceedings, as originally reported, were intended to apply to actions at law, against heirs and devisees. (2 R. S. 2d ed. App. 752.) But when the legislature changed these provisions as reported by the revisers, so as to make them applicable to such suits in this court, and prohibited the bringing of actions at law against heirs and devisees, this court became bound to carry into effect the will of the legislature thus expressed. The proceedings in this court, in such cases, must therefore be in conformity to these statutory regulations; although the effect of the statute, when applied to suits against heirs and devisees in this court, is not only to increase the number of separate suits, but also to make the remedy of the creditor in each suit more complicated and expensive than it would have been under the former practice here.

This, however, is not an ordinary bill to obtain payment of a subsisting legal demand against the estate of the decedent, according to the original rights of the parties as they existed at his death. But the complainant comes into this court for relief upon a state of facts which renders his claim against some of the defendants purely equitable. It would therefore be wrong to compel him to conform strictly to the requirements of these statutory regulations in matters of form merely. It is sufficient if they have been complied with in substance; so far as they are applicable to this case, and may affect the equitable rights of the complainant as against any of the defendants. I shall not, therefore, dismiss the bill, even as to the claim against the appellant as a devisee of the house and lot and half morgan of land in Green-street.

It only remains therefore to modify the decree of the vice chancellor, according to my views of what is just and equitable between the parties under the peculiar circumstances of this case. The following must be substituted for the decree of the vice chancellor, which is reversed and modified accordingly, without costs to either party on the appeal:

1st. Declare that the judgment was inoperative and void as against the appellant and his estate; and that the sale and conveyance by the sheriff to Adams of the property devised to the appellant was a nullity, and conveyed no title to the purchaser, and was not, in equity, a satisfaction of any part of the judgment. And decree that the sheriff’s sale and conveyance, and the subsequent deed to Henry Barhydt from Adams and so much of the mortgage as includes those premises, be annulled and set aside.

2d. Declare that by the will of the testator, Henry Barhydt took an estate for life only, under the will, in the pasture lot bought of Maybie ; and that the remainder in fee in that lot, subject to such life estate, descended to him and his other five brothers and sisters in equal shares, as the heirs at law of the testator John J. Barhydt • that the sale of that lot by the sheriff, and the conveyance thereof, was valid and effectual to transfer to the purchaser such life estate, and the interests of Henry, John S. and Jeronimus in the remainder of the fee as such heirs; that such sale was a satisfaction of the judgment upon the bond, to the extent of the bid of $500, less the sheriff’s fees on that sale, from the time when the property was sold and bid off by Henry ; and that the mortgage to Adams is a valid and subsisting security upon the interest in that property thus acquired under the sheriff’s deed, for the amount of the $500 and interest thereon from the time when the property was struck off to the mortgagor by the sheriff. Direct a reference to a master to compute amount due, upon that principle, and decree a sale, in the usual form, of the undivided moiety of the lot thus acquired under the sheriff’s sale, to satisfy the amount reported to be due, upon the coming in and confirmation of the master’s report. Or, if the complainant prefers it, the decree may merely declare his rights under the mortgage, and leave him to proceed upon the foreclosure bill previously filed against the heirs at law of Henry.

3d. Declare that the residue of the judgment is a subsisting claim in equity against the lands, or any future, contingent, or reversionary interest in lands, which descended to the children of John J. Barhydt, deceased, as his heirs at Jaw; but that in ascertaining the value of the lands thus descended, and which are liable to contribute for the payment of the balance still due, the three-sixths of the remainder in fee in the pasture lot which were legally transferred to the purchaser under the sheriff’s deed, should not be taken into account; that the lands which thus descended, and which are liable to contribution for the satisfaction of such balance, are the remaining three-sixths of the remainder in fee in the pasture lot which descended to the appellant and his two sisters, the remainder in fee in the lot which by the will was also devised to Henry for life only on the north end of the lot devised to the appellant, and the remainder in fee, after the termination of the life estate of Jeronimus, in the two lots devised to him, in which two lots Jeronimus only took a life estate under the will of his father.

4th. Declare that if the value of the estate so descended to the heirs of the decedent is not sufficient to satisfy the balance due on the judgment, the devisees of the testator are bound to contribute rateably towards the satisfaction of the deficiency in proportion to the value of the lands, or the interests therein, which were devised to them respectively, at the death of their testator; but that the interest of Henry in the pasture lot from the time when the same was sold under the judgment, is not to be taken into the account in ascertaining the interests in the lands devised which are thus liable to contribution. And that the lands and interests in lands devised, which were thus hound to contribute are as follows : First. The value of the term of two years devised to Henry in the brick house and lot in Green-street, and of his life estate in the lot north of the property devised to the appellant, according to the principles of life annuities, and of his interest in the pasture lot from the death of the testator down to the time of the sheriff’s sale. Second. The value of the interest devised to the appellant in the brick house and premises on Green-street, subject to the term of two years therein devised to Henry, and also subject to the payment of the legacy of £200 charged thereon. Third. The value of the life estate of Jeronimus, in the two lots devised to him for life, at the time of the death of the testator, upon the principles of life annuities. Fourth. The value of the upper half of the farm devised to John S. subject to the charge thereon of the several legacies to his brother and sisters and niece. And fifth. The value of the lower half of the farm devised to the_ son of John S. in fee, according to the decision of the court for the correction of errors upon the construction of this will.

5th. Direct a reference to a master to ascertain the value of the real estate descended to each of the defendants as an heir of John J. Barhydt as aforesaid, or te-the heirs of such heir, and to compute the amount remaining due to the complainant upon his judgment, and to apportion the same and the taxed costs of the complainant, except his costs as to the foreclosure and sale of the mortgaged premises, among the heirs and representatives of heirs according to the value of the lands liable to contribution ; and to ascertain and report whether any and what part or parts of the lands thus liable to contribution had been aliened previous to the commencement of this suit, and by whom. And if the value of the lands of the heirs so liable to contribute is not sufficient to pay the whole amount due upon the judgment, and costs as aforesaid, then the master is to ascertain the value of the lands and interests in lands devised, and apportion the residue of the debt, accordingly, among the devisees and representatives of devisees.

6th. Declare that if the lands and interest in lands descended and devised shall not be sufficient to pay the complainant’s debt and costs, or if the complainant shall not he able to obtain satisfaction of any part of such debt and costs in consequence of the insolvency or otherwise of any defendant or other person who was bound to contribute, and who had rendered himself personally liable by the alienation of his estate, or otherwise, then the defendants John S. Barhydt and Jeronimus Barhydt, who are personally liable to the complainant for the payment of the whole of the balance due on the judgment, must make good the loss.

Lastly. Decree that upon the confirmation of the master’s report, the complainants have execution for the amounts due from the defendants respectively for debt and costs apportioned against them; such execution to be special against the lands descended or devised, as to the defendants who have not become personally liable by the alienation of the lands descended or devised. But as to the defendants John S. Barhydt and Jeronimus Barhydt, who are personally liable in consequence of the recovery of the judgment, and as to any other defendant who shall appear by the master’s report to have rendered himself personally liable by the alienation of the lands descended or devised, the execution may be general, or both general and special. The complainant must pay the costs of the guardian ad litem, for his services as such guardian for the infants during their minority, but not afterwards; and the amount to be thus paid may be taxed with the complainant’s costs. The heirs at law of Henry are not however to be made personally liable beyond the amount or value of the lands descended to them from him.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Hertell and others vs. Bogert and others.
    Where two executors and trustees under a power contained in the will, sold a part of the real estate of the testator, and took hack a bond and mortgage for the purchase money payable to such cxcutors and trustees jointly, and one of them afterwards, without the knowledge or consent of the other, and when the money was not wanted for tho purposes of the trust, sold and assigned such bond and mortgage, and misapplied the proceeds of i>uch sale and failed, being largely indebted to the estate ; Held, that such sale and assignment of the bond and mortgage by one of the executors and trustees only was unauthorized, and that the assignee acquired no title to the bond and mortgage under such assignment; and that he was only entitled in equity to be protected so far as the purchase money paid by him therefor was actually applied to tho purposes of the trust, or was afterwards 3*eeovcrcd out of the securities which had been taken for a portion of such purchase money by the executor and trustee who had been guilty of the breach of trust.
    Two or more executors are regarded inlaw asoné person, and if one of them sells flic goods or the securities of the testator, for money, to a bona fide purchaser, who has no reason to suppose such executor intends to commit a breach of trust, such purchaser will hold tho property, or securities, not only as against the other executors, but also as against creditors and legatees ; he having by such purchase obtained tho legal title thereto.
    But where a note, or other security, is given to two or more executors jointly, after the death of the testator, the legal title is in all the executors, in the same manner as if it had been given to them as trustees under an ordinary trust; and the concurrence of all of them is necessary to transfer the legal title to. such note or security, to a purchaser thereof.
    Itis a principle of equity that where one of two innocent persons must suffer by the wrongful act of a third party, the one who by his negligence has enabled such third party to do the injury must himself boar the loss occasioned thereby.
    March 16.
    Thís was an appeal from the decree of the vice chancellor of the first circuit. And the principal question between the parties was whether the appellant Bogart was entitled to a bond and mortgage of $12,000, assigned to him by one of the executors of John Dover deceased, under the following circumstances : Dover died in 1822, and by his will, after making- provision for his wife, he gave the income of two thirds of his real and personal estate to his two daughters during their respective lives, to be paid to them, in half yearly payments for their separate use ; and the share of each, after her death, to be distributed among her issue, as tenants in common; The other third he gave to his nephews J. D. Hertell and Wm. Hertell, to be paid to them when they became of age respectively; and the income in the meantime to be applied by the executors for their education and support. And for the more easy and equal division of his estate, the testator authorized his executors, whenever they should think it expedient, to sell all or any part of his real estate either at public or private sale, and to execute conveyances thereof in fee. He also directed his executors to put out his personal estate at interest, on real security, to be kept at interest until the same was payable to the legatees as directed by the will. P. WyckofF and T. Yan Beuren proved the will as executors, and took out letters testamentary thereon, and received the personal property and the rents and profits of the real estate ; Yan Beuren being the acting executor. One of the daughters afterwards died, leaving seven children, her only issue. In February, 1825, the executors, by virtue of the power contained in the will, sold and conveyed to John B. Yates two houses and lots in Broadway, belonging to the estate of the testator, for $22,500 ; of which sum $10,500 was paid down, and the bond and mortgage in question was given for the residue, payable in five years with interest. The bond and mortgage were made payable to the executors, by the names and descriptions of Peter WyckofF, and Thomas Yan Beuren, executors of the last will and testament of John Dover deceased. In March, 1827, Yan Beuren applied to Bogert to purchase the bond and mortgage ; who accordingly bought them, and took an assignment from Yan Beuren alone, without the assent or knowledge of his co-executor. Yan Beuren vested a part of the proceeds upon certain marine securities, and soon after failed ; being largely indebted to the estate. Of the monies loaned on the marine policies, a part was recovered and paid into the hands of a receiver, appointed upon the application of some of the legatees interested in the estate. The vice chancellor decided and decreed that Bogert was not entitled to hold the bond and mortgage as against the persons interested in the estate; and that the assignment to him by one of the executors, without the assent or concurrence of the other, was invalid, the bond and mortgage being given to them jointly in their character of executors and trustees under the will. (See the vice chancellor’s opinion, 3 Edw. Ch. Rep. 20.)

      C. Edwards, for the appellant.
    James Bogert had a right to consider Thomas Van Beuren and Peter Wyckoff as mere executors. And also, under the circumstances, the assignment by Van Beuren, the acting and resident executor, vested the bond and mortgage in him, Bogert. (Swift v. Tyson, 16 Peters, 1. Douglass v. Satterlee, 11 John. Rep. 21, 22, per Kent, Ch. J. Wheeler v. Wheeler, 9 Cowen, 34. Colt v. Lansing, 9 id. 320, 342. Field v. Schiefflin, 7 John. Ch. Rep. 150. Sutherland v. Brush, 7 id. 17. Westly v. Clarke, 1 Eden’s Rep. 357. Hovey v. Blakeman, 4 Ves. 596. Franklin v. Osgood, 14 John. Rep. 527. 2 R. R. 95, § 72. Green v. Hart, on appeal, 1 John. Rep. 580. Smith v. Jameson, 1 Esp. N. P. 114. Co. Litt. 208, K. n. 1. Owen v. White, Freem. Rep. 126. Freake v. Horseley, id. 180. Churchill v. Lady Hobson, 1 P. Wms. 241. Ex parte Griffin, 2 Glynn & Jam. 116. Lingard v. Bromley, 1 Ves. & Beam. 114. Beauchamp v. Silverbrok, 2 Ch. Rep. 9. Rider v. Bickerston, 5 Bac. Abr. 401, pl. 122. 1 Roper on Legacies, 310, 311, 312. Simpson v. Gutteredge, 1 Mad. Ch. Rep. 609. Denne v. Judge, 11 East, 288.) The money was wanted for the purposes of the will. The bond and mortgage were given to Van Beuren and Wyckoff as executors, and are to be regarded as personalty. If so, one executor could sell, assign and discharge the same. The purchaser of the bond and mortgage was not bound to look to the application of the purchase money, nor beyond the bond and mortgage. These state on their face that they were taken by Van Beuren and Wyckoff as executors, not as trustees. Van Beuren could have received the money due on the bond and mortgage, and discharged them. Wyckoff’s joining in the receipt of the money was not necessary. Assignees in Bankruptcy are trustees, yet one assignee may receive money, and give a discharge. The legitimate duty of executors is to distribute estates. This bond and mortgage formed part of the assets to be distributed and divided. The money received on the assignment was therefore received as executor. If the bond and mortgage had been given to the testator, one executor could have assigned the same or received the money due thereon, and given the requisite discharge. So if Wyckoff had died, the authority of Van Beuren, as surviving executor, to sell this bond and mortgage would not have been disputed. A suit should have been pressed against the co-executor Wyckoff, and a full accounting obtained from Van Beuren, before resort was had to Bogert. If any suit can be sustained against Bogert, it can only be sustained by the co-executor Wyckoff, upon the ground that the bond and mortgage had not been legally assigned.

      W. Kent 4c S- Miller, for the respondents.
    James Bogert, the appellant, acquired no title as against the complainants to the bond and mortgage in question, by the assignment from Van Beuren. Van Beuren and Wyckoff held the bond and mortgage which Van Beuren assigned to Bogert, as trustees and not as executors; neither of them, therefore, alone, had the power to sell or assign them. The bond and mortgage being a portion of the avails of the real estate, which they had sold as trustees, were not assets to be administered as personal estate, but were still realty belonging to the devisees to whom the same had been devised. The act or concurrence of all the trustees to whom a power or trust has been delegated, is necessary, to the due execution of the trust or power—one of several trustees has no power to sell or otherwise dispose of the property held in trust, (Sinclair v. Jackson, 8 Cowen, 583. 1 T. R. 487. 2 Ver. 515. 2 Fonb. 184. 19 Ves. 463. 1 Esp. 174. 2 Chan. Cas. 202. 3 East, 410. 3 Swans.
      63.) The bond and mortgage showing on their face that they were given to Van Beuren and Wyckoff as executors, Bogert knew and had notice that they were so given ; he also was informed previous to taking the assignment, that the mortgage was taken on the sale of real estate. The power given in the will to the executors would not survive ; at all events all must join in its execution ; also all must join in the receipt of money. (Sug. on Powers, 163. 14 Johns. 527. 1 Cru. Dig. 550. 3 Atk. 584. 1 P. Wms. 241. 16 Ves. 191.) If Bogert had notice that the executors were trustees, he had notice that they should both have joined in the assignment. But if Van Beuren and Wyckoff held the bond and mortgage as executors, one of them could not, without the assent of the other, transfer the legal title to them by assignment. The bond and mortgage were given to both; they were joint obligees and mortgagees ; the legal title was vested in both jointly, and both must unite or concur in an assignment to vest the legal title in the assignee. (Smith v. Whiting, 9 Mass. Rep. 334.) If two executors take a promissory note as such, and both endorse it, they become personally liable. They also become liable personally, if they make a note as executors. (2 Ball & B. 460. 1 T. R. 295. 7 Ves. 194.)

      S. F. Clarkson, for the executors.
   The Chancellor.

After reading the very able and lucid opinion of the vice chancellor, upon the main question which arises on this appeal, very little remains to be said in reference to the appellant’s claim to the bond and mortgage, under the assignment to him by Van Beuren, one of the mortgagees. I concur in opinion with the vice chancellor that this attempt of Van Beuren to sell the bond and mortgage, which had been taken upon the sale of the real estate, without the consent of his co-trustee and when money was not wanted for the purposes of distribution according to the directions of the will, was a palpable breach of trust. Although one of the daughters had then died, the share of her children in the proceeds of the sale of the Broadway lots was but one third of the $22,500 for which those lots were sold; and the executors had already received more than that third of the proceeds of the sale exclusive of this bond and mortgage. And the will having directed the funds belonging to the estate to be put out upon areal security, until they were wanted for the purposes of distribution, it was also a gross breach of trust to loan such funds upon the marine securities mentioned in Yan Beuren’s answer.

The appellant undoubtedly advanced his money without being aware of the fact that Yan Beuren was selling the bond and mortgage without the knowledge and consent of his co-executor and trustee ; and if it had been a bond and mortgage given to the testator in his lifetime, the assignee would, unquestionably, have acquired the legal title to'these securities under the assignment of one of the executors alone. Executor’s, as such, are regarded in law ,as one person ; and therefore if one of them sell the goods or the securities of the testator to a bona fide purchaser, who has no reason to suspect that such executor is committing a breach of trust, such purchaser will have a right to hold the same not only against the executors but also as against creditors and legatees. This is founded upon the general principle that, where the equities of the parties are equal, and one of them has obtained the legal title without notice of the prior equity of the other, this court will not interfere to deprive the party who has equal equity of the legal advantage he has gained, as a bona fide purchaser or assignee. If a promissory note is given to the testator, or a bond and mortgage are given to him in his lifetime, the endorsement of the note by one executor, or the assignment of the bond and mortgage by him, would be sufficient to transfer the legal title to such security to a purchaser thereof. And if the purchase, in such a case, was made in good faith, a court of equity would not interfere. The appellant’s counsel, however, is under a mistake in supposing that a security given to two or more executors jointly, stands upon the same footing ; so as to authorize one of the executors to transfer the legal title to the security without the concurrence of his co=executors. For in such a ease the legal title to the security is in all the executors jointly, in the same manner as if it had been given to them as trustees under an' ordinary trust; and the concurrence of all the executors is necessary to transfer the legal title of the security, to the purchaser thereof. (Smith v. Whiting, 9 Mass, Rep. 334.) The appellant, or his counsel, under whose superintendence the purchase of this bond and mortgage was made, had therefore no right to presume that Van Beuren could sell and convey a good title to this bond and mortgage without the concurrence of his co-executor; even if he had supposed it was a security for monies belonging to the estate arising from the testator’s personal property merely. There is a manifest distinction between the right of one of two joint payees of a note or of a bond and mortgage, to receive the monies due thereon, and the right of. one without the consent of the other to sell or assign the security to a third person. In the first case the payment of the debt to one of the obligees is a legal discharge of the liability of the debtor. And if it has been paid in good faith, without notice of any equity in favor of a third person which should have induced the debtor to withhold such payment, the legal discharge of the debt will protect him, in chancery as well as at law, against parties whose equities are only equal to his. But in the second case, as the sale, or assignment, by one of two or more joint obligees, who are not copartners, cannot have the effect to give to the purchaser of the security the legal title to the same, the equity of the cestui que trust must prevail; upon the principle that he who is prior in time is strongest in right where the equities of the parties are equal in other respects. (Lepard v. Vernon, 2 Vesey & Beame. 51. Tourville v. NHiash, 3 Peer Wms. Rep. 308.) The decision of Chancellor Kent in Sutherland v. Brush, (7 John. Chan. Rep. 17,) appears to be inconsistent with this view of the case, so far at least as his decree went to maintain the assignment of the bond and mortgage given to Palmer and Crosby jointly, upon the supposition that Palmer had not consented to that assignment, which was in fact made by Crosby only. It is evident, however, that my learned predecessor in that case overlooked the distinction between the sale by one executor of a security given to the testator, and the sale by him of a security given to him and his co-executor jointly without the consent of such co-executor. There is another substantial objection to that decision, which is, that Brush was not a bona fide purchaser so as to entitle him to protection as to any of the securities as against the complainants, although he had not notice of the fact that they belonged to the estate at the time of such assignment. Brush paid nothing upon the assignment to him ; nor did he assume any responsibility or discharge any available security upon the faith of that assignment. But the assignment was made as a mere security to indemnify against a responsibility previously assumed. The decision, therefore, was directly in conflict with the principle which the learned chancellor had himself distinctly recognized and acted upon in the ease of Coddington v. Bay, (5 John. Ch. Rep. 54,) and which had received the sanction of the court of dernier resort a few days before the case of Sutherland v. Brush was decided. (See 20 John. Rep. 637.)

In the present case the appellant was chargeable with notice, or rather he had actual notice, that the mortgage was held by the two exeutors in the character of trustees for the sale of the real estate under the will. On the face of the mortgage it only appeared that it was money due to them as executors. But CL Bogert, who was entrusted by the .appellant to make the arrangement for the purchase of the bond and mortgage, unquestionably must have inquired into the title to the mortgaged premises. And if so, he necessarily ascertained that the mortgage was taken for the purchase money on a sale under the trust power in the will. In addition to this, he was examined as a witness for the appellant and proves that he also had notice that it was a mortgage taken by the executors upon a sale of real estate. He states that a short time before the assignment the appellant informed him that Dr. Van Beuren had spoken to him respecting the purchase of a bond and mortgage taken by Van Beuren and Wyckoff as the executors of Dover, for the balance of the consideration money on the sale of the Broadioay property, &c. The principal, therefore, as well as his attorney, must have known the real character in which this bond and mortgage were taken and held, under the will of the testator ; and that, in point of law, it was impossible for one of the trustees to transfer a valid title to this bond and mortgage without the consent of his co-trustee, even if one of the executors alone could transfer a bond and mortgage which had been given to them jointly for a part of the personal assets of the decedent. (Lewin's Law of Trustees, 265.)

It is unquestionably hard that the appellant, who has advanced his money under such circumstances, should lose it; but it is equally so that the complainants should sustain the loss. In addition to that, the equitable maxim qui prior esi in tempore potior est in jure, is sufficient to turn the scale in their favor. There is also another equitable principle which shows that they have the better right. That principle is, that when one of two innocent persons must suffer by the wrongful act of a third party, the one who by his negligence has enabled such third person to do the injury must himself bear the loss occasioned-thereby. Here, the negligence of the appellant, in advancing his money and taking an assignment from one trustee alone, has enabled Van Beuren to commit this breach of trust. For if the attorney had not mistaken the law as to the right of Van Beuren alone to sell and assign the bond and mortgage, the result would have been that no breach of trust would have been committed. Or at least, if the co-trustee had joined in the assignment of the bond and mortgage, when the money was not wanted for distribution, he would have made himself personally liable to the complainants for the loss. The decree therefore, in its main features, is right and should be affirmed with costs.

A slight modification of the decree may be necessary, in a point not suggested to the vice chancellor, to enable him to make affinal decree protecting the rights of all parties on the coming in and confirmation of the master’s report. The appellant, who advanced his money upon this assignment, is entitled to protection so far as the money advanced by him was actually applied to the purposes of the trust; and so far as that money or the proceeds thereof can be traced and identified as now existing in available securities, or as being in the hands of the officers of this court so that it can be thus applied. The decree is probably broad enough now to make it the duty of the master to allow the appellant for any part of the money actually applied for the purposes of the trust, as an offset against the amount received by Bogert on the bond and mortgage. But it may not be broad enough to include any part of the fund paid to the receiver in the former suit, as testified by Walker ; and which fund may be the avails of the money received from the appellant at the time of the assignment of the bond and mortgage to him. This modification the counsel for the respondents was understood as assenting to upon the argument; and it must be made accordingly. And the amount and present situation of that fund must also be stated in the master’s report; and such fund must be transferred to the credit of this cause, so that it may be disposed of under the final decree made therein.

Decree accordingly.


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    In the matter of Kellinger, collector, &c.
    The register, assistant register, and clerks of the court of chancery arc not liable to be assessed as trustees, for the funds and securities belonging to suitors in that court standing in the names of such officers. Neither can the court be assessed and taxed as the trustee of such funds or securities.
    Where monies are deposited in court, or securities taken for the same in the names of any of the officers of the court in their official characters, the owners of such funds or securities are liable to be assessed and taxed therefor, at the places of their residence, as a part of their personal estate.
    March 16.
    This was an application by the collector of the ward in the city of New-York in which the office of the assistant register of this court is located, for an order directing such assistant register to pay to the petitioner, for the use of the corporation of the city, a tax of $7048, assessed against the court of chancery in 1838; on account of the funds and securities belonging to suitors in the court, standing in the name of the assistant register, either as such register or as clerk of the first circuit.

      P. Ji. Cowdrey, for the petitioner.
   The Chancellor.

As this application involved the rights of all the suitors in this court who had funds standing in the name of one of its officers, as well as the rights of the towns or wards where such suitors reside to tax them for their interests in such funds, I directed notice of the petition to be given to the attorney general, as well as to the late assistant register. But as neither of those officers appeared to argue against the application, I am compelled to decide the question involved therein upon the ex parte argument of the counsel for the petitioner, who is also the counsel for the corporation of the city of New-York. The question thus presented for consideration is one of great consequence, not only to parties whose property is under the care of this court, but also to the inhabitants of other sections of the state where such parties reside. For if the court of chancery, or its officer, can be taxed as the trustee of the fund in the sixth ward of the city of New-York, suitors residing elsewhere must either pay a double tax upon their interests in the fund, or the town or ward where such suitors reside will be deprived of the right to tax them any thing on account of that portion of their personal estates. It will be seen that the amount of the tax claimed in this case amounts to about $7000 annually. And if the claim of the corporation can be sustained, the principle is not only applicable to the funds in the hands of the officers of this court, but also to every other court in the state under whose control the funds of suitors are temporarily placed. The result of a decision in favor of this application, would be to give to the town or ward where the office of a register or clerk of any court of record., or of a surrogate, is situated, the exclusive right to tax the funds in court j although the property actually belonged to persons residing in other parts of the state. I have therefore examined the question with all the care which its importance seemed to require, although I have only had the aid of counsel on one side, and have arrived at a conclusion, which is perfectly satisfactory to my own mind, that the claim made in behalf of the corporation of the city of New-York is one which cannot be sustained.

The first section of the titlé of the revised statutes relative to property liable to taxation, (1 R. S. 387,) adopts the general principle that all lands and all personal property within this state is liable to taxation subject to certain exceptions specified in the subsequent sections. But as many kinds of personal property have in fact no locality, except such as is connected with the actual domicil of the owner of such property, it became necessary for the legislature to declare in what cases and under what circumstances that species of property should be deemed to be located within this state for the purposes of taxation; and the person to whom it should be considered as belonging, for the purpose of determining in what section of the state it should be taxed, and to enable the proper officer to collect the tax imposed thereon. This has been done, except as t° the property of corporations, by the section of the revised statutes which declares that every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him; including- all such personal estate in his possession or under his control as trustee, guardian, executor, or administrator. (1 R. S. 389, § 5.) This section makes the trustee of property, who has the possession or control of it as such trustee, the owner thereof for the purposes of taxation. And such property is to be taxed where such owner resides, without reference to the actual location of the property itself. To protect the real owner or cestui que trust from double taxation, the same section also provides that in no case shall property so held, under either of the trusts therein mentioned, be assessed against any other person.

It is very evident; that the court of chancery cannot be considered as a person holding and owning property as a trustee, and having a local residence in a particular town or ward, so as to authorize the imposition of a tax upon the court under this section of the statute. For, the mode of making the assessment, and of reducing the amount thereof when assessed too high, and the manner of collecting the tax by a distress and sale of the property of the person against whom such tax is assessed, as directed in the revised statutes, are inconsistent with the idea that the legislature could have intended that the property of suitors should be assessed as belonging to the court of chancery as a trustee.

Besides; this court has no residence in any particular town or ward, so as to authorize the assessors of such town or ward to assess it for the funds which are under its control. The statute, therefore, which directs personal property held by trustees, guardians, &c. to be assessed to the persons sustaining such fiduciary characters, at the places of their residence, only applies to private persons who sustain those characters, and not to courts. And the clause exempting trust property from assessment against the real owner of such property, is limited to cases where the property is thus held by persons to whom the same can properly be assessed as individuals in the fiduciary characters mentioned in the statute. In all other cases the real owner of the property, if he is a resident of this state, should be assessed, to the value of his beneficial interest in the fund or property ; and the town or ward in which he resides at the the time of the assessment is entitled to the benefit of the assessment.

Neither can it be proper to assess the registers and clerks of this court as trustees of the funds standing in their names in the banks in which the moneys of the court are required to be deposited, or in the shape of stocks, bonds and mortgages, or other securities. For, as to such funds the registers and clerks are not trustees thereof; nor are such funds either in their possession or under their control. Although the money paid into court stands in the name of the register or clerk, he is not entitled to the possession thereof j neither can he draw it out of the bank without the special order of the court, countersigned by the chancellor or vice chancellor under whose control such fund is placed. Nor can such register or clerk sell or assign any certificate of stock, or any bond and mortgage, or other security standing in his name, so as to make a valid transfer thereof to the assignee or purchaser, without an order of the court authorizing such transfer. And if the funds are assessed to the register or clerk as a trustee, and the tax is collected from him, he cannot reimburse himself out of the fund in court; nor is there any mode provided by law whereby he can be remunerated for the loss which he would in such case inevitably sustain.

If any part of the fund in court belongs to persons residing in the city of New-York, so as to render it proper that the same should be taxed in that city, the true course is to assess the same to such owner in the ward in which he resides, as a part of his personal estate; so as to give him an opportunity to reduce the assessment, on the usual affidavit, if he is assessed for more personal property than he is actually worth, over and above his debts. And if he resides in any other part of the state, so as to be liable to taxation for this part of his property in some other city or town, or if he is a non-resident, so that his property is not liable to taxation here, the corporation of New-York has no equitable claim to reach such property and impose a tax thereon, for the benefit of that city, because an officer of the court happens to keep his office there.

The petition must therefore be dismissed.


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    Gilchrist, administrator, &c. vs. Rea.
    Upon an appeal from an order or decree of a surrogate, all the parties to the proceedings before the surrogate, who are interested in sustaining the order or decree appealed from, should be made parties to the petition of appeal.
    Where a surrogate has made an order for the sale of a part of the real estate of the decedent, for the payment of the debts that were then ascertained’, he is not authorized to make another order, to sell another portion of the estate to pay debts alleged to have been subsequently discovered, until the executor making the application has made out and filed an account of such new debts, and has complied with the other provisions of the statute, as on an original application'.
    An administrator who has no funds of the testator or intestate in his hands for the payment of debts is not authorized to pay alleged debts which are barred by the statute of limitations, and then to obtain an order for the sale of the real estate of the decedent to reimburse himself for the amount of the debts thus paid.
    March 16.
    This was an appeal from the decision of the surrogate of Washington county, refusing to confirm a sale of real estate made by administrators. Samuel Rea the elder, the father of the respondent, died in 1813 ; and by his will he authorized and empowered his executors to sell such part of his real estate as might be necessary to pay his debts, if his personal property should not be sufficient for that purpose. His executors having renounced the execution of the will, in November, 1813, administration with the will annexed was granted, by the surrogate, to A. Gilchrist, the appellant, and J. W. Gillia. And in May, 1814, they filed an inventory, by which, it appeared that the personal estate of the decedent was of the value of $846. About eight years afterwards, the administrators presented a petition to the surrogate for an order to sell the real estate to pay the debts, on the ground that the personal property was insufficient for that purpose. In the account then filed the aggregate of the debts of the testator, paid and unpaid, including the expenses of administration, were stated at $1145,72 ; of which debts there then remained unpaid $311. And the proceeds of the personal property were credited at $615 ¿ leaving a balance due to the administrators and to the creditors whose claims were then unpaid, of $530,71. In March, 1822, the surrogate made an order to sell a portion of the real estate, which was afterwards sold for $306,75. The administrators made a report of that sale, in March, 1823, stating in their report that there was still a deficiency of $275 j and asked for a further order of sale. The surrogate confirmed the sale and ordered the administrators to convey to the purchaser. And on the same day he made another order to show cause on the 17th of May, why all the residue of the real estate should not be sold for the payment of the debts.
    No further proceedings were had upon that order. But in 1825, the administrators presented a petition to the new surrogate stating the sale of the first piece of land, and that •after expending all the personal property and the proceeds of that sale, there still remained a large sum due from the estate of the decedent, but without stating how much and without rendering any account of the debts then due and unpaid$ and asking for an order to show cause why all the real estate, or so much thereof as should be necessary to pay his debts, should not be sold. The order was granted accordingly ; and on the 19th of April, 1825, the administrators obtained a further order of the surrogate, which recited that $712,09 of the debts still remained unpaid, and directed them to sell seventy acres of the real estate of thé decedent, and that the proceeds of such sale should remain in the hands of amdinistrators as assets for the payment of debts and the costs and expenses of the proceedings.
    Nearly eleven years after the making of that order, and long after the death of Gillis, one of the administrators, who died in 1828, the appellant in this canse, as the survivor, presented to the surrogate a report, stating that the administrator sold the premises mentioned in the order, to A. S. McDougall, in July, 1825, for the sum of $568,79 j and asked for an order confirming such sale. The surrogate considering it proper that the owners of the premises should be heard upon that application, made an order that they should show cause before him, on the 8th of February, 1836, why the sale should not be confirmed and a deed given to the purchaser; or why, in case such sale should he vacated, the surviving administrator should not be directed to re-sell the premises under the order of April 1825. The order to show cause having been served upon the respondent, one of the heirs of the testator and the occupant of the premises, he appeared before the surrogate with his counsel to oppose the application, and the appellant also appeared with his counsel, and moved for an order to confirm the sale. And the will of the decedent and the various petitions, returns, orders, and other proceedings on file or of record in the surrogate’s office were given in evidence. The surrogate, after hearing the counsel folithe parties, decided that the order of sale was unauthorized—1st. Because the will had charged the debts of the testator on the real estate, and had authorized his executors as trustees to sell so much of the estate as was necessary for the payment of debts ; and 2d. On account of the great lapse of time between the,granting letters of administration and the application for the order to selh He therefore discharged the order to show cause, and denied the application to confirm the sale. From this decision Gilchrist the surviving administrator appealed to the chancellor.

      The following written opinion was delivered by the surrogate at the time of making the order appealed from :
    J. Willard, surrogate. (After stating the facts in the case.) The question before me is, ought I to confirm this sale 1 If the surrogate ought not to have entertained the application originally, the present surrogate should not confirm the sale. I ought not to be required to do that which I cannot help seeing should be reversed on the merits. I do not think that the order of sale made in April, 1825, precludes me from looking beyond it to see whether the surrogate had jurisdiction to grant it. I might not be required, or perhaps allowed, to go beyond it for a mere matter of form. There are two objections which I think are fatal to the surrogate’s jurisdiction. First. The will contained a power of sale which in effect clothed' the executors with power to sell all the real estate of the deceased to pay debts. They were thus created trustees, amenable only to the court of chancery, and entitled to the aid of that court only, if any was necessary, to consummate the sale. But none was necessary. They could sell without an order from any court. It was never contemplated that the surrogate should make an order for the sale of real estate when the executors had power to do so, given by the will. (See R. L. of 1813, p. 450.) By the existing law there is an express provision, on the subject, denying the power to the surrogate. (2 R. S. 102, § 14, sub. 2.) Though the executors renounced, it is presumed the administrators with the will annexed could execute the power. If they could not, it devolved on the court of chancery. (See 1 R. S. 734, § 100.)

      Secondly. The lapse of time, between the granting of letters of administration with the will annexed and the application to the surrogate, being above nine years, in my judgment ousted the surrogate of jurisdiction. Although the statute is silent on this subject, until the revision of 1830, yet the legislature obviously did not intend in giving the power in question to the surrogate to make the debts of the deceased a perpetual lien on the real estate in the hands of the heirs or devisees. Such a doctrine would eventually interfere with the sale of real estate in the hands of heirs or devisees, and be attended with monstrous oppression, especially in cases where infants are interested. The debts were all barred by the statute of limitations, long before the first application to sell was made. The present statute allows the act of limitations to be set up, in bar of claims against the estate, by any person interested in it; and I entertain no doubt that the same principle existed at common law. (6 John. Ch. R. 360,376. 1 R. L. 450,453.) What other reason could be assigned why notice should be given to all persons interested in the estate, to shew cause why it should not be sold to pay debts, unless they might contest the validity of the debts as well as the just administration of the personal assets ? Chancellor Kent intimated an opinion in Mooers v. White, (6 John. Ch. Rep. 378,) that one year after the granting of letters was a sufficiently long time; unless in special cases the surrogate, in the exercise of sound discretion, might see fit to allow a longer time. The revised statutes allow three years. No reason is shown why a delay of nine years was allowed in this case; and it appears the heirs were infants and no guardian was appointed on the first sale. Chancellor Kent probably fixed too short a period ’ but I am satisfied that nine years is altogether beyond a reasonable allowance. I am not calling in question the legality of the first sale. An innocent purchaser will stand in a different light from the administrators themselves. I do not vacate any order; I merely refuse to make an order, the effect of which would be to enable the administrators to do a wrong, and thereby defeat the title of the heirs or devisees of the land. I do not deem it necessary to express an opinion on the other points, as I think the two above stated are conclusive against the application 5 and they cannot be obviated. It is not for me to suggest the remedy of the surviving administrator or the purchaser. But if they have paid money by which the estate has been benefitted, they can, doubtless, be relieved by a court of equity ; either by allowing the power in the will to be executed, or otherwise. There is, however, no remedy given by the act of 1819, or by the revised statutes. (2 R. S. 110, § 61.) I shall deny the application for the reasons above stated.
    J. Crary, for the appellant.

      C. L. Allen, for the respondent.
   The Chancellor.

The appeal in this case is irregular, as all the parties who are interested in sustaining the decision of the surrogate are not before me. It appears by the transcript that Samuel Rea, the elder, left several heirs whose interest in the real estate sold by the administrators, in 1825, would be affected by the reversal of the order of the surrogate and a confirmation of the sale. Although Samuel Rea, one of the heirs, alone appeared and contested the case before the surrogate, it does not appear that the other heirs had notice of the order to show cause. They cannot, therefore, be considered as assenting to the order to confirm the sale. The appellant then should have made them parties, to his petition of appeal, as well as the respondent Samuel Rea, who has appeared and answered the same. The practice on that subject and the proper course to be adopted to bring all the proper parties before this court on the appeal, and to put the case in readiness for á hearing in case of their neglect to answer the petition of appeal, will be found by a reference to the 118th rule of this court, and in the cases referred to in the notes to that rule. But as the respondent who has appeared and answered did not raise that objection, I shall proceed to consider the case upon its merits, so far as his rights are concerned.

It is not necessary that I should express an opinion as to the objection that the surrogate could not malie an order of sale where the will of the testator had charged all his real estate with the payment of his debts, by authorizing his executors to sell so much thereof as might be necessary if the personal estate should be insufficient. That power in trust to the executors was probably an imperative power, which the court of chancery might have decreed the execution of, for the benefit of the creditors ; and which the court would not permit to fail for want of a trustee to execute the same. I am not prepared to say, however, that the existence of such a power, previous to the revised statutes, was wholly inconsistent with the right of the surrogate to make an order of sale, upon the application of the administrators with the will annexed, where the trustees of the power had renounced the trust. In the recent case of Austin v. Conklin, decided in the court for the correction of errors in December, 1840,1 had occasion to examine the provisions of the revised statutes and of the former laws of this state in relation to the powers of administrators with the will annexed. From that examination I became pretty well satisfied that such a trust power could not be executed by the administrator cum testamento annexo, previous to the adoption of the revised statutes. And the supreme court had decided in that case that the revised statutes gave him no such authority. (See Conklin v. Egerton’s adm’r, 21 Wend. Rep. 430. 25 Idem, 224.)

But I concur in opinion with the very learned and intelligent surrogate whose decision was appealed from, that the order of April, 1825, for the sale of the premises in question, was unauthorized, and that his successor was, on that ground, right in refusing to confirm the sale. That was not an order for a further sale to pay the balance of the original debts reported by the administrators when they applied for the first sale for the balance remaining due upon the first sale, according to their sworn report, was only $275. Even if the original order therefore was not absolutely void, as to which, I express no opinion, the administrators were not entitled to a new order to sell another portion of the estate to pay new debts, if there were any such which had been discovered since the filing of their report of the first sale, without first making out and filing an account of such new debts, in the same manner as if it had been an original application. The order of March, 1823, to show cause why a further sale should not be made to pay the deficiency of $275, appears to have been abandoned. The petition which was presented two years after was, for every subsubstantial purpose, an original application, And it should have been accompanied by a proper account and inventory of the debts then existing, and the names of the persons to whom they were due, to authorize the surrogate to proceed, even if the right to institute such a proceeding had not been barred by lapse of time.

Again ; the administrators were required by the statute to make and file a statement of the debts, as far as they could discover the same, as soon as conveniently might be. And Chancellor Kent, in the case of Mooers v. White, (6 John. Ch. Rep. 360,) held that one year was a reasonable time for that purpose, unless special circumstances were shown to the surrogate to justify an application after that time. I will not say that in no conceivable case, under the former statute, the surrogate would be authorized to make an order where the administrators had neglected to make their application after the lapse of several years. But to justify the surrogate in making an order after such a lapse of time, the executors or administrators applying for the order must at least state in their petition that new debts, which were valid and subsisting claims against the estate, had recently been discovered. And if more than six years had elapsed they would also be bound to show that the debts were of such a nature that they were not barred by the statute of limitations. The administrators, in such a case, had no right to volunteer to pay debts which could not legally be enforced against them, or against the estate of the heirs at law, when the administrators had no assets in their hands. And if they did so, before the confirmation of the sale, and when they had no legal right to receive the purchase money, they did it in their own wrong and should themselves bear the loss.

The order appealed from mpst he affirmed with costs as. to the respondent Samuel Rea, who is made a party to thp petition of appeal and has answered the same. And as to every other person who had any interest in sustaining that order the appeal must be dismissed.