representative capacity, costs shall not be awarded against him, except as prescribed in the next section. From 2 R. S. 90, Part 2, ch. 6, tit. 3, part of § 41 (2 Edm. 92). § 1836. Costs, when awarded, etc. Where it appears in a case specified in the last section that the plaintiff's demand 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 did not file the consent provided in section eighteen hundred and twenty-two at least ten days before the expiration of six months from the rejection thereof 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 upon the trial. Where the action is brought in the supreme court, the facts must be certified by the judge or referee before whom the trial took place. From 2 R. S. 90, Part 2, ch. 6, tit. 3, part of § 41 (2 Edm. 92). of 1895, and ch. 469 of 1897. Am'd by ch. 595 See § 3246. ARTICLE SECOND. Action by a Creditor against his Debtor's Next of Kin, Legatee, Heir, or Devisee. SEC. 1837. When action lies against next of kin, legatees, etc. 1838. Action may be joint or several. 1839. In joint action, recovery to be apportioned. 1840. Recovery in a several action. 1841. Requisites to recovery in action against legatee. 1842. Id.; in action against a preferred legatee. 1843. Liability of heirs and devisees. 1844. When action therefor may be brought. 1845. Effect of application to sell real property. 1847. Recovery to be apportioned. 1848. Requisites to recovery against heirs. 1849. Id.; against devisees. 1850. Deductions for prior recoveries. 1851. Complaint to describe land descended, etc. 1852. Judgment; when to be satisfied out of land. 1853. Id.; when not a lien on land aliened. 1854. How judgment taken, when land aliened. 1855. Classification of debts to be enforced under this article. 1856. Defence by reason of other prior or equal claims. 1857. Id.; when such a claim is paid. 1858. Action not suspended by infancy. 1859. This article not applicable, where will charges real property, etc. 1860. One action, where same person is heir, devisee, etc. § 1837. When action lies against next of kin, legatees, etc. An action may be maintained, as prescribed in this article, against the surviving husband or wife of a decedent, and the next of kin of an intestate, or the next of kin or legatees of a testator, to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which an action might have been maintained against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action. From 2 R. S. 90, Part 2, ch. 6, tit. 3, § 42 (2 Edm. 92). § 1838. Action may be joint or several. An action specified in the last section, must be brought, either jointly against the surviving husband or wife, and all the legatees, or all the next of kin, as the case may be, or, at the plaintiff's election, against one of them only. But where a legacy is received by two or more persons jointly, they are deemed one legatee, within the meaning of each provision of this article, relating to legatees. From 2 R. 'S. 451, Part 3, ch. 8, tit. 3, §§ 23 and 26 (2 Edm. 470). § 1839. In joint action, recovery to be apportioned. Where a joint action is brought, as prescribed in the last section, the whole sum, which the plaintiff is entitled to recover, must be appor tioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the final judgment must award, against each defendant separately, the proportionate sum thus ascertained. The costs of the action, if the plaintiff is entitled to costs, must be apportioned in like manner; except that the expenses of serving the summons upon each defendant must be taxed against him only; and one sheriff's fee, for returning an execution, may be taxed against each defendant, against whom any sum is awarded. From Id., part of § 24 and §§ 28-31. § 1840. Recovery in a several action. Where an action is brought against the surviving husband or wife only, or against one only of the next of kin, or legatees, the sum, which the plaintiff is entitled to recover, cannot exceed the sum which he would have been entitled to recover from the same defendant in an action brought, as prescribed in the last section. From Id., §§ 24, 25 and 28. § 1841. Requisites to recovery in action against legatee. If the action is brought against a legatee, or against all the legatees, the plaintiff must show, either: 1. That no assets were delivered by the executor or administrator of the decedent, to the surviving husband or wife, or next of kin; or, 2. That the value of assets, so delivered, has been recovered by some other creditor; or, 3. That those assets, after payment of the expenses of administration and preferred demands, are not sufficient to satisfy the demand of the plaintiff; in which case he can recover only for the deficiency. From Id., § 27. § 1842. Id.; in action against a preferred legatee. Where some of the legatees are preferred to others, an action may be maintained, as prescribed in the last five sections, against one or all of those who are equally preferred, or equally deferred, as if the legatees of that class were all the legatees. But where it is brought against a preferred legatee, or a class of preferred legatees, the plaintiff must show, in addition to the matters, with respect to the next of kin, required by the provisions of the last section, the same matters, with respect to each legatee, or class of legatees, to whom the defendant or defendants are preferred. § 1843. Liability of heirs and devisees. The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest, and right in the real property, which descended to them from, or was effectually devised to them by the decedent. From 2 R. S. 452, Part 3, ch. 8, tit. 3, § 32 (2 Edm. 472). § 1844. Wban action therefor may be brought. But an action, to enforce the liability declared in the last section, cannot be maintained, except in one of the following cases: 1. Where three years have elapsed since the death of the decedent, and no letters testamentary, or letters of administration, upon his estate, have been granted within the State. 2. Where three years have elapsed, since letters testamentary, or letters of administration, upon his estate, were granted, within the State. From 2 R. S. 109, Part 2, ch. 6, tit. 4, § 53 (2 Edm. 113). § 1845. Effect of application to sell real property. Where it appears that, at the time of the commencement of such an action, a petition, seasonably presented as prescribed by law, praying for a decree to dispose of real property of the decedent, for the payment of his debts, was pending in a surrogate's court having jurisdiction, the proceedings in the action, subsequent to the complaint, must be stayed by the court, until the petition is disposed of, unless the plaintiff elects to discontinue. If a decree to dispose of real property, pursuant to the prayer of the petition, is granted, the action must be dismissed, unless the plaintiff has alleged in his complaint, or alleges in a supplemental complaint, that real property, other than that included in the decree, descended or was devised to the defendants. If the plaintiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the decree; and the judgment in the action does not charge, or in any way affect, that property. From Id., the remainder of § 53. § 1846. Action must be joint. An action against heirs or devisees, brought as prescribed in the last three sections, must be brought jointly against all the heirs, to whom any real property descended from the decedent, or jointly against all the devisees, as the case may be. From ch. 460 of 1837, § 73 (4 Edm. 500). § 1847. Recovery to be apportioned. In such an action, the sum, which the plaintiff is entitled to recover, for damages and costs, must be apportioned among all the defendants, in proportion to the value of the real property descended to each heir, or devised to each devisee, as the case may be, as prescribed in section 1839 of this act, for a similar apportionment among legatees or next of kin, in proportion to the assets received by them. The final judgment must, in like manner, award against each defendant the proportionate sum, with which he is chargeable. From 2 R. S. 455, Part 3, ch. 8, tit. 3, §§ 52 and 53 (2 Edm. 474). § 1848. Requisites to recovery against heirs. Where the action is brought against heirs, the plaintiff must show, either: 1. That the decedent's assets, if any, within the State, were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class; or 2. That the plaintiff has been unable, or will be unable, with due diligence, to collect his debt, by proceedings in the proper surrogate's court, and by action against the executor or administrator, and against the surviving husband or wife, legatees, or next of kin. The executor's or administrator's account. as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts, required to be shown by this section. From Id., § 53, as amended by ch. 110 of 1859 (2 Edm. 472), and § 36. § 1849. Id.; against devisees. Where the action is brought against devisees, the plaintiff must show, in addition to the matters specified in the last section. either that the real property of the decedent, which descended to his heirs, was not sufficient to pay the plaintiff's debt, or that the plaintiff has been unable, or will be unable, with due diligence, to collect his debt by an action against the heirs. From Id., §§ 56 and 59. § 1850. Deductions for prior recoveries. Where the assets, applicable to the plaintiff's debt, were sufficient to pay a part thereof, or a part thereof has been collected from the executor or administrator, or from the surviving husband or wife. next of kin, or legatees, the plaintiff can recover only for the residue, remaining unpaid or uncollected and if the action is against devisees, he can recover only for the residue, which the real estate descended, or the amount of his recovery against the heirs, is insufficient to discharge. From Id., §§ 34 and 57. § 1851. Complaint to describe land descended, etc. The complaint must describe, with common certainty, the real property, descended or devised to the defendant; and must specify its value. From Id., §§ 44 and 60. § 1852. Judgment; when to be satisfied out of land. If it appears that any of the real property, which descended or was devised to a defendant. had not been aliened by him at the time of the commencement of the action, the final judgment must direct that the debt of the plaintiff, or the proportion thereof which he is entitled to recover against that defendant, be collected out of that real property. Such a judgment is preferred as a lien upon that property, to a judgment obtained against the defendant, for his individual debt or demand. From Id., §§ 47, 48 and 60. See §§ 870, 872. § 1853. Id.; when not a lien on land aliened. But a judgment rendered as prescribed in the last section, does not bind, and the execution thereupon cannot in any way affect, the title of a purchaser, in good faith and for value, acquired before a notice of the pendency of the action is filed, or final judgment is entered, and the judgment-roll filed. From Id., § 51, and last clause of § 61. § 1854. How judgment taken, when lands aliened. If it appears that before the commencement of the action, or afterwards and before the filing of a notice of the pendency of the action, the defendant aliened the real property descended or devised to him or any part thereof, the plaintiff may, at his election, take a fina1 judgment against him for the value of the property so aliened, or so much thereof as may be necessary, as in an action for the defendant'. own debt. From Id., § 49 and the remainder of § 61. § 1855 Classification of debts to be enforced under this article. Where the surviving husband or wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as prescribed in this article they must give preference in the payment thereof, and they are so liable therefor. in the order prescribed by law, for the payment of debts by an executor or administrator. Preference of payment can |