In re Bertley , 16 Abb. Pr. 89 ( 1863 )

Amos G. Hull, Surrogate.

This motion is made under section 1, ch. 295, of the act of 1850. (Sess. Laws, 639.)

That act provides that execution against the property of a deceased person shall not issue in any case “ unless upon permission granted by the surrogate of the county, who has jurisdiction to grant administration or letters-testamentary on the estate of the deceased judgment-debtor; which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution.

That the order of the surrogate may be valid, sufficient cause must be shown for granting the same. Is it sufficient to set forth the simple fact that the judgment has not been paid % I think not.

The process is to affect the heirs of the deceased, and persons claiming under them; It is right that they should not be disturbed until after the creditor has exhausted his remedies against the personal estate of the deceased. ?

The statutes of this State provide that the heirs of persons who shall have died intestate, and the heirs and devisees of any person who shall have died after the making of his last will and testament, shall be liable for the debts of such person, arising by simple contract or specialty, to the extent of the estate, interest, or right in the real estate which shall have descended to them from, or been devised to them by, such person.

But such heirs are not liable for such debts unless it appears that the personal assets of the deceased were not sufficient to discharge the same; or that, after due proceedings before the surrogate and at law, the creditor has been unable to collect such debt from the personal representatives of the deceased, or from his next of kin, or legatees. (2 Rev. Stat., 452; see, also, 11 Barb., 271; 9 Paige, 46.)

The cause of action upon which the judgments were rendered, referred to in the moving papers in this case, arose upon contract. There is nothing in the papers in this case showing that the personal assets of the intestate were insufficient to pay the debts.

These facts should appear. (Alden a. Clark, 11 How. Pr., 209.)

In this class of applications, the better practice would be to set forth also a description of the real estate designed to be affected by the proceedings.

The motion must be denied, but without prejudice to a renewal of the same upon proper affidavits, and without costs.