Lankford v. Thornton

Appellate Division of the Supreme Court of New York

Lankford v. Thornton

161 A.D. 890, 145 N.Y.S. 1130

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1914

StatusPublished

This text of 161 A.D. 890 (Lankford v. Thornton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lankford v. Thornton, 161 A.D. 890, 145 N.Y.S. 1130 (N.Y. Ct. App. 1914).

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Opinion

The remedy against the legatee or heirs of a deceased debtor being purely statutory, is controlled, defined and regulated by the enactments now in force. (Selover v. Coe, 63 N. Y. 438.) The right to pursue the successors in interest, such as legatees, is based on the fact and to the extent only that assets have been paid or distributed to such legatee. (Code Civ. Proc. § 1837.) So far as concerns the demurring legatee, Mr. McDermott, it is not alleged that the legacy to him has been paid, or that any assets of the estate have been distributed to him. This suit, begun in less than a year after the testator’s death, was instituted before any such legacy could be lawfully paid. (Code Civ. Proc. § 2721.) Hence it was rightly held that the complaint as to this defendant does not state facts sufficient to constitute a cause of action. The interlocutory judgment sustaining the demurrer is, therefore, affirmed, with costs, but with leave to the plaintiff to plead anew within twenty days upon payment of costs. Jenks, P. J., Thomas, Rich, Stapleton and Putnam, JJ., concurred.

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The remedy against the legatee or heirs of a deceased debtor being purely statutory, is controlled, defined and regulated by the enactments now in force. (Selover v. Coe, 63 N. Y. 438.) The right to pursue the successors in interest, such as legatees, is based on the fact and to the extent only that assets have been paid or distributed to such legatee. (Code Civ. Proc. § 1837.) So far as concerns the demurring legatee, Mr. McDermott, it is not alleged that the legacy to him has been paid, or that any assets of the estate have been distributed to him. This suit, begun in less than a year after the testator’s death, was instituted before any such legacy could be lawfully paid. (Code Civ. Proc. § 2721.) Hence it was rightly held that the complaint as to this defendant does not state facts sufficient to constitute a cause of action. The interlocutory judgment sustaining the demurrer is, therefore, affirmed, with costs, but with leave to the plaintiff to plead anew within twenty days upon payment of costs. Jenks, P. J., Thomas, Rich, Stapleton and Putnam, JJ., concurred.

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Bluebook (online)

161 A.D. 890, 145 N.Y.S. 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lankford-v-thornton-nyappdiv-1914.

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