see Wambaugh v. Gates, 11 Paige, 505; Bennett v. Morehouse, 42 N. Y. 189; Halsey v. Read, 9 Paige, 446; Whitaker v. Young, 2 Cow. 569.

§ 1822. [Amended, 1882.] Limitation of action by creditor on claim rejected, etc.- Where an executor or administrator disputes or rejects a claim against the estate of the decedent, exhibited to him, either before or after the commencement of the publication of a notice requiring the presentation of claims, as prescribed by law, unless the claim is referred, as prescribed by law, the claimant must commence an action for the recovery thereof against the executor or administrator, within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due; in default whereof he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent's property.

2 R. S. 89, 238 (2 Edm. 91). Tucker v. Tucker, 4 Keyes, 136; Selover v. Coe, 63 N. Y. 438; Clark v. Sexton, 23 Wend. 477; Whitmore v. Foose, 1 Den. 159; Broderick v. Smith, 3 Lans. 26; Dolbeer e. Casey, 19 Barb. 149; Van Saun v. Farley, 4 Daly, 165; Kidd v. Chapman, 2 Barb. Ch. 414 National Bank of Fishkill v. Speight, 47 N. Y. 668; Elliott v. Cronk, 13 Wend. 35.

§ 1823. Decedent's real property not bound by judgment against executor, etc.-Real property, which belonged to a decedent, is not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof.

2 R. S. 449, 12 (2 Edm. 468). See 1815, ante, and Bank of Cooperstown v. Corlies, 1 Abb. Pr. (N. S.) 12.

§ 1824. Want of assets not to be pleaded by execu tor, etc.-In an action against an executor or administor, in his representative capacity, wherein the laint demands judgment for a sum of money, the e, sufficiency, or want of assets, shall not be by either party; and the plaintiff's right of renot affected thereby, except with respect to o be awarded, as prescribed by law. A judg

ment in such an action is not evidence of assets in the defendant's hands.

New. Substituted for 2 R. S. 88 and 89, 22 31, 39 and 40 (2 Edm. 90 and 92), and 2 R. S. 448, 450 and 451, 6 and 19-22 (2 Edm. 467, 470). See

People v. Judges of Erie county, 4 Cow. 445.

§ 1825. Leave to issue execution against executor, etc.-An execution shall not be issued, upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued. Such an order must specify the sum to be collected, and the execution must be indorsed with a direction to collect that sum.

2 R. S. 88, 232 (2 Edm. 90), amended. Olmstead v. Vredenburgh, 10 How. 215; Mills v. Thursby, 2 Abb. 432; s. c., 12 How. 385; Alden v. Clark, 11 How. Pr. 209; Frink v. Morrison, 13 Abb. 80; Marine Bank of Chicago v. Van Brunt, 49 N. Y. 160; Wood v. Morehouse, 45 id. 368; Winne v. Van Schaick, 9 Wend. 448; People v. Judges of Albany, 9 id. 486; Mulheran's Ex'rs v. Gillespie, 12 id. 349; People v. Judges of Erie, 4 Cow. 495; Mills v. Thursby, 11 How. 126 (Surro. Ct.); Matter of Thompson, 41 Barb. 237; 1380, ante.

1826. Id.; how procured; order; and contents thereof.-At least six days' notice of the application for an order specified in the last section, must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due dili gence; in which case notice must be given to such persons, and in such manner as the surrogate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, are not, or will not be, sufficient to pay all the debts, legacies or other claims of the class to which the plaintiff's claim belongs, the sum, directed to be collected by the execution, shall not exceed the plaintiff's just proportion of the assets. In that case, one or more orders may be afterwards made in like manner, and one or more executions may be afterwards issued, whenever it appears that the sum directed to be collected by the first execution is less than the plaintiff's just proportion,

Id., 32, in part, and 2 R. S. 115, 13 (2 Edm. 119), 1381, subd. 2, ante. See Wallace v. Swinton, 64 N. Y. 188, and cases cited under preceding section; St. John v. Voorhies, 19 Abb. 53; Mitchell v. Mount, id. 1.

§ 1827. Security may be required from a legatee.— Where a judgment has been rendered against an executor or administrator, for a legacy or distributive share, the surrogate, before granting an order permitting an execution to be issued thereupon, may, and in a proper case must, require the applicant to file in his office an undertaking to the defendant, in such a sum and with such sureties as the surrogate directs, to the effect that if, after collection of any sum of money by virtue of the execution, the remaining assets are not sufficient to pay all sums for which the defendant is chargeable for expenses, claims entitled to priority as against the applicant, and the other legacies or distributive shares, of the class to which the applicant's claim belongs, the plaintiff will refund to the defendant the sum so collected, or such ratable part thereof, with the other legatees or representatives of the same class, as is necessary to make up the deficiency.

Substituted for 2 R. S. 114, 115, 22 10 and 11 (2 Edm. 118).

1828. Actions, etc., when not to abate.-An executor, administrator, or a person appointed by the surrogate, as prescribed in chapter eighteenth of this act, to dispose of the real property of a decedent, is deemed a trustee, appointed by virtue of a statute, within the meaning of that expression as used in section 766 of this act.

Substituted for 2 R. S. 77, 8 40 (2 Edm. 78); 2 R. S. 115, 14 (2 Edm. 119), and L. 1850, ch. 162 (4 Edm. 508).

§ 1829. Execution on former judgment.-An execution may be issued, in the name of an executor or administrator, in his representative capacity, upon a judg ment recovered by any person who preceded him in the administration of the same estate, in any case where it might have been issued in favor of the original plaintiff, and without a substitution.

2 R. S. 449, 13 (2 Edm. 468). See 1376, ante.

1830. Action against executor, etc., who has been perseded.—If an executor or administrator is defendin an action or special proceeding, pending when vers cease, the plaintiff may, in a proper case, d therein against him, to charge him personally; judgment or other determination, thereafter ren

dered or made against him, is not of any force, as against the estate of the decedent, or a person succeeding to the administration thereof.

2 R. S. 115, 15 (2 Edm. 119).

§ 1831. False pleading by executor, etc.-An executor or administrator cannot be made personally liable to the adverse party, for a debt or for damages, by reason of his having made a false allegation in pleading.

2 R. S. 438, 10 (2 Edm. 468). Ackerman v. Emmott, 4 Barb. 626.

1832. When inventory may be contradicted.-In an action or special proceeding, to which an executor or administrator is a party, wherein the question whether he has administered the estate of the decedent, or any part thereof, is in issue, or is the subject of inquiry, and the inventory of assets, filed by him, is given in evidence, either party may rebut the same, by proof, either

1. That any property was omitted in the inventory, or was not returned therein at its true value; or

2. That any property has perished, or has been lost, without the fault of the executor or administrator; or has been fairly sold by him, at private or public sale, at a less price than the value so returned; or that, since the return of the inventory, it has deteriorated or enhanced in value.

Id., 14, amended.

§ 1833. Liability for uncollected demands.-In such an action or special proceeding, the executor or administrator shall not be charged with a demand or right of action, included in the inventory, unless it appears that the same has been collected, or might have been collected, with due diligence.

Id.. 15, amended. Moore's Estate, 1 Tuck. 41; Clark v. Clark, 8 Paige, 152; Mesick v. Mesick, 7 Barb. 120; Hollister v. Burritt, 14 Hun, 291; Brown's Accounting, 15 Abb. (N. S.) 457; Adair v. Brimmer, 74 N. Y. 539.

§ 1834. The last two sections qualified.--The last two sections do not vary any rule of evidence respecting any proof, which an executor or administrator may now make

Id., 16.

§ 1835. Costs; how awarded.-Where a judgment

f

for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section.

2 R. S. 90, 841 (2 Edm. 92). See Code of Proc., 8 317; Howe v. Lloyd, 2 Lans. 335; 9 Abb. (N. S.) 257; Fish v. Crane, id. 252; Pursell v. Fry, 19 Hun, 595.

§ 1836. Id.; when awarded.--Where it appears, in a case specified in the last section, that the plaintiff's de mand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims; and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim, as prescribed by law; the court may award costs against the executor or administrator, to be collected, either out of his individual property, or out of the property of the decedent, as the court directs, having reference to the facts which

appear on the trial. Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee, before whom the trial took place.

Id., 41, in part, ? 3246, post, and see Field v. Field, 77 N. Y. 294, and Morgan v. Skidmore, 3 Abb. N. C. 92; Buckhout v. Hunt, 16 How. 407; Snyder v. Young, 4 id. 217; Van Vleck v. Burroughs, 6 Barb. 341; Fort v. Gooding, 9 id. 388; Russell v. Lane, I id. 519; Bullock v. Bogardus, 1 Den. 276; Cruikshank v. Cruikshank, 9 How. 350; Comstock v. Olmstead, 6 id. 77; Stephenson v. Clark, 12 id. 282; Fort v. Gooding, 9 Barb. 388; Knapp v. Curtis, 6 Hill, 386; Swift v. Blair, 12 Wend. 278; Proude v. Whiton, 15 How. 304; Gorham v. Ripley, 16 id. 313; Mersereau v. Ryerss, 12 id. 301; Woodruff v. Cook, 14 id. 481; Marsh v. Hussey, 4 Bos. 614; Lanning v. Swarts, 9 How. 434; Darling v. Halsey, 2 Abb. N. C. 105; Harrison v. Ayers, 18 Hun, 336; Darling v. Halsey, 2 Abb. N. Q. 105.

ARTICLE SECOND.

ACTION BY A CREDITOR AGAINST HIS DEBTOR'S NEXT OF KIN, LEGATEE, HEIR, OR DEVISEE.

@ec. 1837. When action lies against next of kin, legatees, etc. 1838. Action may be joint or several.

1999. In joint action, recovery to be apportioned.

10. Recovery in a several action.

1. Requisites to recovery in action against legatee.
Id.; in action against a preferred legatee.

iability of heirs and devisees.

When action therefor may be brought.
fect of application to sell real property.

Action must be joint.

Recovery to be apportioned.