EXECUTION. EXECUTION. 1. A judgment which requires nothing besides the payment of moneye. g., an order that defendant pay money into court to be distributed according to law-must be enforced by an execution, and that is the only proceeding that can be resorted to, in the first instance, to compel payment. Proceedings cannot be had under 2 Rev. Stat., 5 ed., 849, § 1, subd. 3, because that in terms excludes all cases where by law execution can be awarded for the collection of the sum ordered to be paid. N. Y. Superior Ct., Sp. T., 1863, Gray a. Cook, 24 How. Pr., 432. 2. The provision of section 287 of the Code, that an execution against a married woman shall direct the levy and collection of the amount against her from her separate property, and not otherwise, is directory merely. Supreme Ct., Chambers, 1862, Thompson a. Sargent, Ante, 452. 3. The provision of the statutes, to the effect that the surrogate alone shall order executions to be issued against executors or administrators as such, is inapplicable to judgments in actions originally commenced against the decedent. Supreme Ct., 1862, Thacher a. Bancroft, Ante, 243. 4. It constitutes no answer to a debtor's claim that a thing is exempt from execution, that it is new, and has never yet been applied by him to the use for which he claims that it is necessary, and by virtue whereof exempt. Supreme Ct., 1862, Fields a. Mouls, Ante, 6. 5. The court may relieve a purchaser at a sale under execution, when the purchase has been induced by misrepresentation. Supreme Ct., 1862, Dwight's Case, Ante, 259. 6. Thus, where D. purchased at a sale on execution "all the right, title, and interest" of T. in certain real estate, misled by the representation of the creditor's attorney that T. had good title, and afterwards discovered that T. had conveyed the property prior to the docketing of judgment;-Held, that D. was entitled, on motion, to have the sale set aside, and to be released from his purchase. Ib. 7. An execution against joint-debtors has priority over an attachment against one of the debtors, though the attachment is also for a joint debt. Supreme Ct., 1862, Abels a. Westervelt, Ante, 230. 8. Defects in an execution which would be amendable on motion, cannot be taken advantage of by a creditor with a junior execution. Ib. 9. Where an execution has been duly issued, and duly returned by the sheriff unsatisfied in whole or in part, and the plaintiff has in nowise interfered, he may proceed to institute proceedings supplementary to EXECUTORS AND ADMINISTRATORS. the execution, although the execution was returned in less than sixty days, and without any application by the sheriff to the defendant, and there was property which the sheriff might have taken and sold for the purpose of satisfying the judgment. The return of the sheriff is conclusive, where the plaintiff has not interfered. [9 Wend., 560; 18 How. Pr., 33.] Supreme Ct., 1861, Fenton a. Flagg, 24 How. Pr, 499. 10. The arrest and detention of a judgment-debtor, under an execution against his person upon the judgment, amounts to a satisfaction of the judgment for the time being. Supreme Ct., 1862, Fassett a. Talmadge, Ante, 205. 11. That execution against the person satisfies the judgment during im prisonment. Bank of Beloit a. Beale, 7 Bosw., 611. AMENDMENT, 7; BAIL; CREDITOR'S SUIT, 4, 5. EXECUTORS AND ADMINISTRATORS. 1. Relatives of a decedent are entitled to administer upon his estate, under the statute (2 Rev. Stat., 74, § 27), although they may not be entitled to a distributive share when the letters are granted. Ct. of Appeals, 1862, Lathrop a. Smith, 24 N. Y., 417. Otherwise by the Laws of 1863,* 607, § 3; amending 2 Rev. Stat., 74, 27. 2. On an application to the surrogate for the appointment of an administrator, it is regular to appoint the applicant, if he has prior right, and it may be done without citing any persons of inferior right. Supreme Ct., 1862, Cobb a. Beardsley, 37 Barb., 192. 3. Under the statutes of this State, where there are several executors named in a will, and objections are interposed before the surrogate against issuing letters to one of them, the issuing of letters must be suspended as to all until the objections have been determined. [Laws of 1837, ch. 460, § 22.] Ct. of Appeals, 1861, McGregor a. Buel, 24 N. Y., 166. 4. As a general rule, if a creditor swears positively to a debt due to him from the decedent, he will be entitled to an order for an inventory and an account of the estate. And the surrogate will not proceed to try the validity of the debt, or to inquire as to the amount thereof upon a mere application for an inventory. [1 Lee's Ecc. Rep., 525.] An allegation that the application is vexatious, and to gratify the So it was held under the former act, in Public Administrator a. Peters, 1 Bradf., 100, which was overruled, supra. EXECUTORS AND ADMINISTRATORS. curiosity of the petitioner, cannot be available when there is a claim made in good faith, even though the claim is disputed. Supreme Ct., 1862, Forsyth a. Burr, 37 Barb., 540. 5. Although an inventory filed by an administrator is, on an accounting, prima-facie evidence against him of what the assets consist, and of their value, still it is not conclusive. He has a right to show that property not belonging to the estate was inventoried, and may also show that the property belonging to the estate was of less value than the amount at which it was inventoried. Supreme Ct., 1862, Hasbrouck a. Hasbrouck, 24 How. Pr., 24. 6. Thus, where an executor, having sold the testator's interest in his firm on a credit, under the supposition that he could turn over the securities he took on the sale, filed an inventory and an account, fixing the value of the interest of the deceased in the firm;-Held, that this should not preclude him, when he was sought to be personally charged with that amount, from showing, if he could, the actual value of the interest if it had been sold for cash, or if the partnership had been wound up in the usual course. Ib. 7. A person interested in the estate applied for a citation to compel the administrator and administratrix to account, which citation was served on the former only, who, upon its return, applied for a citation to all parties interested to attend a final accounting, and all attended, including the administratrix; but the administrator, who appeared to act alone as such, accounted alone, and was treated, by the surrogate, as accountable for the whole estate. Held, that this was a final settlement of the whole estate; an entire proceeding, and not a partial settlement of the accounts of only one of its representatives. Supreme Ct., 1862, People a. Townsend, 37 Barb., 520. 8. In such case, the surrogate having adjudged the administrator as accountable for losses which resulted from neglect, and not having treated the administratrix as responsible, who had been equally inactive, -Held, that his decree, though it might be erroneous, could not be deemed fraudulent and illegal on its face, so as not to sustain an action on the administrator's bond. Ib. 9. A surrogate has the power to open a decree made by him on the final accounting of an executor or administrator, and to require a further account in respect to a sum received by him with which he had charged himself at less than the real amount. The statute makes the final accounting conclusive in other respects, but not in this. Ct. of Appeals, 1861, Sipperly a. Baucus, 24 N. Y., 46. 10. Although the provision of 2 Rev. Stat., 94, § 65, declares a final ac EXECUTORS AND ADMINISTRATORS. counting of an executor or administrator conclusive as to certain specified matters, in all tribunals, it is still conclusive in the Surrogate's Court, as to all other matters, so far at least as to the right to compel a further account. N. Y. Surr. Ct., 1862, Brick's Estate, Ante, 12. 11. Such an accounting is as conclusive against infants as it is against other parties. Ecclesiastical or Surrogates' Courts have not power, unless it is conferred by statute, to open a decree affecting an infant, after the infant attains majority. It is only in case of bad faith on the part of the guardian ad litem or executor, or fraud or surprise upon the court, that the infant is entitled to have such decree set aside. Ib. 12. In an action against several executors, such of them as are first served with process, or first appear, are entitled, under 2 Rev. Stat., 448, 5, to answer for the estate; and it is irregular for their co-executor to put in an answer thereafter. Supreme Ct., 1862, Salters a. Pruyn, Ante, 224. 13. Nor does collusion between the plaintiff and the executor who first answers, give his co-executor the right to answer, at least not without the leave of the court on a direct application for that purpose. Ib. 14. The provision of 2 Rev. Stat., 75, § 32, last clause,-which forbids the issue of letters of administration to any married woman, but allows them to issue to her husband in her right and behalf,-amended so as to forbid the issue of such letters to any married woman, unless with the written consent of her husband. But, with such a written consent, she may administer without her husband. Laws of 1863, 607, ch. 362, § 4. 15. Letters testamentary, or of administration, may be granted in this State, on the probate here of the will of one domiciled abroad, on whose estate administration has been granted in the State or county of such domicil, to the foreign representatives, or persons entitled, upon security. Notice to be given first, and creditors in this State to be cited. Laws of 1863, 694, ch. 403. 16. The provisions of the Laws of 1837, 525, ch. 460, §§ 6, 7,—which require the surrogate, upon application for probate, to ascertain what parties are minors, and appoint special guardians if they have no general guardian within the State, and directing the mode of service of the citation, --amended by directing the inquiry as to who are minors, to be had on the return-day, or before proceeding upon the will, and by modifying the mode of service accordingly, and by requiring service of a citation to at tend probate to be made by mail, also, in cases of publication. Laws of 1863, 606, ch. 362, §§ 1, 2. 17. A similar modification made of the appointing of guardians on an ap plication for authority to sell, &c., real estate of the decedent. The surrogate may order a sale of part, and mortgage or lease of another part; and only one order to show cause necessary. Laws of 1863, 606, ch. 362, § 6. 18. The provision of 2 Rev. Stat., 106, § 36,-which regulates the applica tion by the surrogate of the proceeds of a sale of the real estate of a decedent, under his order,-amended so as to read as follows: "The surrogate shall, in the first place, pay out of the said moneys the charges and ex FORMER ADJUDICATION. penses of the sale; he shall next satisfy any claim of dower which the widow of the testator may have upon the lands so sold, by the payment of such sums, in gross, as shall be deemed, upon the principles of law applicable to annuities, a reasonable satisfaction for such claim, if the widow shall consent to accept such sum in lieu of her dower, by an instrument under seal, duly acknowledged or proved, in the same manner as deeds entitled to be recorded; and then from the residue he shall pay any sum which may have been found due to the executors or administrators upon the settlements of their accounts, after applying thereon the proceeds of the personal estate of the testator or intestate." Laws of 1863, 691, ch. 400. 19. The provision of 2 Rev. Stat., 94, § 62,-which requires the publication of citations to attend final accounting, where there are creditors abroad, -amended by requiring the citation to them to be served also by mail. Laws of 1863, 607, ch. 362, § 5. 20. Surrogate not to receive fees where the inventory does not exceed $500; nor on appointing guardians to enable minors to receive bounty, arrears of pay, or prize-money for services of parent or brother in United States service. Laws of 1863, 608, ch. 362, § 7. 21. Section 58 of 2 Rev. Stat., 93,-which regulates the compensation of executors and administrators,-amended by fixing the limit between the second and third rate of commissions at ten thousand dollars, and providing for the case of several executors. Laws of 1863, 608, ch. 362, § 8. JOINDER OF ACTIONS, 3; PARTIES, 1, 4, 5; WITNESS, 10. FORECLOSURE. 1. It is the duty of a referee in foreclosure, appointed after failure to answer, for the purpose of ascertaining the amount due, to attach to his report an abstract of the documentary evidence. Supreme Ct., Chambers, 1863, Security Fire Ins. Co. a. Martin, Ante, 479. 2. That the title acquired under foreclosure of a mortgage is not affected by the fact that a sale of the equity of redemption, made before the foreclosure, was void for being made pending a suit as to the property. Ct. of Appeals, 1862, Collumb a. Read, 24 N. Y., 505. 3. An order vacating the sale, and opening the judgment in a foreclosurecase, renders invalid the title of the purchaser and his grantees. Supreme Ct., 1862, Freeman a. Munns, Ante, 468. 4. Where there is a surplus fund in court after a foreclosure against executors, a creditor who has obtained a surrogate's decree against the estate will be preferred to legatees who claim the fund. Supreme Ct., Chambers, 1862, Clark's Case, Ante, 227. FORMER ADJUDICATION. 1. To render a former adjudication a bar, it must appear that the litigation was between the same parties or their privies. N. Y. Com. Pl., 1862, Goddard a. Benson, Ante, 191. |