Hughes v. Golden

44 Misc. 128, 89 N.Y.S. 765

• Court: New York Supreme Court
• Decided: June 15, 1904
• Status: Published

Opinion

Maddox, J.

The personal estate is the primary fund for the payment of debts and when found to he insufficient., the land may be resorted to, hut such proceedings must he had within three years after letters were first issued. Code Civ. Pro., § 2750: Here that period of time has long since elapsed, and though the personalty was insufficient, such proceeding was not instituted by the administrator or any creditor. The account of the administrator has been settled and passed, and the claims of the creditors have been established on the accounting proceeding to which it appears the heirs were parties.

While the creditors are not necessary parties to this action, still they are before the court, and in equity their rights should be protected; if not protected here they will be remitted to their action against the heirs under section 1843 of the Code of Civil Procedure, and many of such heirs are nonresidents of the State and of the county, and the shares of some are very small, viz.: the one-seven hundred and thirty-fifth part. To so remit the creditors would result in a multiplicity of actions, when all right can be determined here.

The administrator has paid from the. personal estate the transfer tax, a claim against those to whom the property descended, and in equity the administrator is subrogated to that claim for the benefit of the creditors, for they had the right to the application of such personalty to the payment of their debts.

Let report be modified so as to provide for the payment of the creditors, or of a sufficient sum to the administrator, to enable him to pay said creditors.

Beferee’s report modified.