
    Lorinda P. Bennett, Resp’t, v. Lucy Crain, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    Surrogate—Partnership—Judgment against surviving partner does NOT BIND THE REAL ESTATE OP THE DECEASED PARTNER—SUBROGATE NO POWER TO DIRECT PAYMENT OF SUCH A JUDGMENT—HlS ACTS REGULATED BY STATUTE.
    The defendant’s testator, Almeron W. Grain, and one Perry P. Crain, were partners, and as such, gave a note on which there remained a balance unpaid, for which balance judgment was recovered by the plaintiff herein against Perry -P. Crain, as surviving partner, and after exhausting her remedy against him, she (the plaintiff herein) presented a petition to-the surrogate, who issued citations to the_ executors of the will of Almeron. W. Grain, and on the return of the citations made a decree declaring the-plaintiff’s demand a valid claim against the estate of decedent, and ordered, his executors to pay the balance of the judgment out of the assets of the-estate. On their failure to do so an execution was issued by the surrogate: to the sheriff, under which he sold and executed a deed of the land in. question, which land had been devised to the defendant, Lucy Crain, the widow of the decedent. The defendant, being in possession, was evicted: from the premises by summary proceedings instituted before the county judge. Held, that the plaintiff failed to make a case entitling her to the-possession of the premises described in the proceedings before the county judge. That the surrogate exceeded his jurisdiction, and that plaintiff acquired no title to the land under the sale upon either of the executions.
    Appeal from an order of the county judge of Cortland county. The order was made in summary proceedings,, and awarded to the plaintiff the possession of certain land,
    Almeron W. Crain, the testator of defendant, who is his-widow, and Perry P. Crain, were partners in business at the time of decedent’s death under the firm name off Almeron W. Crain & Son. The firm had given a note for $1,000 to plaintiff, on which suit was brought against the-surviving partner, and judgment recovered and execution issued.
    Perry P. Crain and Charles A. Pierce were appointed. executors by the will of Almeron W. Crain, and upon the plaintiff failing to realize the amount of her judgment on the execution issued against the surviving partner, citations were issued to the above named executors by the surrogate to show cause why the balance of the judgment should not be ordered paid out of the decedent’s estate. On the return of the citations a decree was entered declaring the plaintiff’s claim against the estate to be valid and ordering the executors to pay it out of the assets of the estate. Upon their failure to do so an execution was issued to the sheriff under which he advertised and sold the real estate which Lucy Crain was in possession of as legatee of decedent. The deed given by the sheriff was duly recorded and defendant was evicted by summary proceedings, instituted before the county judge, the right of possession of plaintiff being based on the sheriff’s deed aforesaid. The will of the testator contained the two following clauses.
    “ Second. I give and bequeath to my wife, Lucy Crain, the house and lot where I now reside, together with the-household furniture and all appurtenances thereto belonging 'unconditionally. I also give and bequeath to my said wife, Lucy Crain, the use of all the remainder of my real estate and woolen machinery during her natural life; and if the said real estate and machinery shall fail to rent for a sum sufficient for her comfortable support and maintenance, then, and in that case, I order, direct and authorize that the amount may be raised either by mortgage or sale of the-said property.”
    “ Third. I give and bequeath to my son, Perry P. Crain, his heirs, executors, administrators and assigns all the rest, residue and remainder of my real and personal estate after paying the above named legacies, hereby empowering, ordering and directing him to pay all my debts, and collect all my dues, and to settle all demands for and against the several co-partnerships with which I have heretofore been connected.”
    In the proceedings before the county judge defendant objected to the proceedings on the ground that the surrogate did not have jurisdiction to make the decree, nor the sheriff to sell the property under the decree made.
    
      A. P. & D. C. Smith, for app’lt; I. H. Palmer, for resp’t.
   Hardin, P. J.

Appellant took title to the premises in question upon the death of Almeron W. Crain under his will, subject, however, to any equitable lien thereon which, might arise in favor of the creditors of the deceased.

A recovery of a decree or judgment against the personal representatives, as such, created no lien upon the said real estate. In the Matter of the Estate of James, 4 Redf., 236 Lynch v. Patchen, 3 Dem., 58. The judgment against the personal representatives of the deceased was not obligatory upon the heirs-at-law, the widow or devisees of the testator. Sharpe v. Freeman, 45 N. Y., 802. Such a judgment is not sufficient to render the plaintiff a judgment creditor of tho widow or heirs-at-law.’ Id.

The judgment or order which is authorized by section 2553 of the Code of Civil Procedure, is not a hen upon the real estate of tho decedent. Such a judgment' or decree may be enforced .by an execution against the property of tho party directed to make the payment. Code of Civil Procedure, section 2554. The defendant here was not such a party.

Whenever the surrogate goes beyond his statutory power he exceeds his jurisdiction, and his acts are not effectual in such case. Code of Civil Procedure-, section 2472. His power over real estate of a testator or intestate, in respect to its sale, depends upon the statute, which authorizes proceedings to sell or mortgage, to enforce payment of debts in case there be not personal property applicable therefor. No. such decree, as the statute referred to authorizes was held by the respondent, who recovered a decree declaring her claim valid against the estate of A. W. Crain, deceased, “and that1 the executors shall pay the' same out of the assets of the estate of Akneron W. Crain, now in their hands.” That, decree did not authorize the sheriff to sell the real estate of the appellant, and the sale under that decree did not divest the appellant of her title to or interest in the real estate devised to her by her husband. The respondent failed to make a case entitling her to the possession of the premises described in the proceedings had before the county judge of Cortland county.

The learned county judge, in his opinion, refers to The People v. Mc Adam (84 N. Y., 294), and opinion of Folger, Ch. J., for his conclusion that the proceedings may be maintained. That case differs from this one. There the property which fell to the hands of the executors was leasehold estate, and, therefore, passed to the executors as personal property as assets and for distribution. The learned chief judge so declared, and referred to his:opinion in Despard v. Churchill (53 N. Y., 199), in which latter opinion he says of such property that “at common law it is personal property.” The statutes of this state have for some purposes modified its character; estates for years are denominated estates in lands. 1 R. S., 722, 1, etc. They are still chattels real (id., 722, § 5), and are not classed as real estate in the chapter of “title to property by descent.” A judgment binds and is a charge upon them as assets for distribution. 2 id., 82, section 6; see Pugsley v. Aikin, 11 N. Y., 499. “They vested in the executors as a part of the testator’s personal estate.” The case People v. McAdam (supra) is, therefore, unlike the one before us.

Our attention is called to Haight v Brisbin (100 N. Y., 223), where it is said an executor who has failed to sell personal property, and a loss has happened without adequate excuse, the executor may be charged, and that in a proper case a similar remedy may be had in case of failure to sell real estate, but that does not aid the respondent here.

If an executor has been dilatory in the sale of real estate he may be hable. That furnishes no power to or reason why the surrogate may make a decree against him or in proceedings against him which will bind the devise of real estate or an heir-at-law, without a day m court.

Second. The judgment recovered against a surviving partner of Crain & Co. did not give any hen upon the individual property of the deceased member of the firm, under which the property of the individual member of the firm had passed to the appellant by will of the deceased member of the firm. The appellant was not a party to that action, nor were her lands bound by the hen of that judgment. It may be conceded that a creditor may compel an executor, with power of sale, to sell real estate for the payment of debts. Code of Civil Pro., § 2804 However, before a decree to that effect may be made, a citation must be issued to the persons whose rights in the estate or fund might be affected by such a decree. Code of Civil Pro., § 2806. No such citation was issued to the appellant and her estate in the lands in question has not been cut off by a proper decree or judgment, or the title thereto transferred to the plaintiff.

By section 2749 of the Code of Civil Procedure authority is given to direct the disposition of real estate for the payment of debts and funeral expenses of the decedent, but all devisees and heirs-at-law of such real estate must have citations. Section 2754. Arid they may appear and contest before the surrogate, upon the return of the proper citation. Section 2755. In such a proceeding though a judgment has been “rendered against an executor or administrator for a debt due from the decedent, the debt is nevertheless deemed a debt of the decedent to the same extent and to be established in the same manner ” as other debts, though the judgment is presumptive evidence. Code, § 2756.

The provisions of law already referred to, and others as to details of sale of real estate of deceased parties to pay debts are to the effect and for the purpose of working out a pro rata distribution among creditors of the proceeds of real estate ■ arising by reason of the same being, mortgaged or sold to pay the debts of the deceased. In the Matter of the Estate of Fox, 92 N Y, 96

We are of tire opinion that the order of the county judge of Cortland county should be reversed.

Boardman and Follett, JJ , concur.  