
    Eleanor Lauby as Executor of Maria Allen, Deceased, Plaintiff, v. Hannah Gill, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    January, 1904.)
    Creditor’s action against a sole devisee of lands, of the deceased debtor, who had aliened them before action brought — Deductions — Taxes in the city of Hew York — Dower — Proof and form of creditor’s judgment.
    Where an alleged judgment creditor of a testator brings an action against the sole devisee of his lands, the same being situate in the city of Hew York, to recover the debt out of them to the extent of their value in excess of the liens upon them at the time of the testator’s death, and it appears that the sole devisee, who was his widow, has aliened them before the commencement of the action, she is entitled, in estimating the value for which she is liable, to a deduction not only for mortgages existing on the lands when he died but also for taxes which were then a lien thereon and this because, in said city, taxes are a lien on land and not a personal debt of the owner. ' -
    Her dower must also be ascertained and deducted where the devise to her was not in terms in lieu of dower nor repugnant to it. The judgment creditor must prove her claim by the judgment roll in her action and a mere transcript of the judgment therein is. insufficient.
    A judgment against the sole devisee as executor of the said testator does not bind her in an action like this brought against her as an individual.
    Action against the defendant as devisee to make her liable for a debt of her testator to the extent of the real estate devised to her.
    W. E. Warland for plaintiff.
    Peter P. Pope for defendant.
   Gaynor, J.:

The defendant’s testator, who was her husband, devised all of his real estate to her in fee. She aliened the same before the commencement of this action. I find the value of the devised lands, over and above the mortgages and taxes thereon, to have been the sum of $37,482.03 at the time of the testator’s death. The total of his debts is $45,208.02.

I have deducted the taxes for the reason that they were a lien on the land, and enforcible against the land only, as is the case with all land taxes in the city of Hew York. Section 2719 of the Code of Civil Procedure prescribes the order in which the debts of decedents must be paid, making “ Taxes assessed on the property of the deceased previous to his death,” payable second. This section in terms applies' only to debts of decedents, and therefore only refers to taxes which are such debts, and collectible by distraint of the debtor’s chattels by the tax collector, or by other proceedings against him, and which are therefore valid claims against the executor or administrator. Under the general tax laws of the state, taxes are not levied on the land, but only assessed against the owner personally, except in the case of non-resident lands; and the said Code provision embraces only the former, they being personal debts. Taxes levied on the land and not assessed against the owner are in the same category on the question being decided as local assessments on the land, which was the case presented in Matter of Hun (144 N. Y. 472).

The defendant, having aliened the land devised to her, is liable to the creditors of her testator to the extent of the ■ value of such land over the liens thereon at the time of the testator’s death, and they may take judgments against her instead of against the land to that amount, each creditor being entitled to a judgment for his proportionate share, such value being less than the aggregate of debts (Code Civ. Pro., §§ 1854 et seq.).

But the defendant’s dower interest must be ascertained and deducted from the value of the land in ascertaining the value for which she is liable. The devise to her. of all of the real estate in fee was not in terms in lieu of dower, and did not put her to her election. It is not repugnant to her right of dower (Lewis v. Smith, 9 N. Y. 502).

The plaintiff does not seem to have proved her claim. She put in evidence a transcript of the docket of a judgment therefor by her against the defendant as executor of her testator. But the transcript does not even prove the judgment; the judgment roll is necessary; and the judgment against the defendant as executor does not bind her in this action against her individually (Collins v. Hydorn, 135 N. Y. 320). Unless the claim is 'agreed to it must be proved, and I will open the case for that purpose.

Judgment will then be rendered accordingly.  