
    Matter of the Estate of Margaret McTevey, Deceased.
    (Surrogate’s Court, Saratoga County,
    January, 1916.)
    Wills — probate of — renunciation of appointment as administrator with will annexed — vacation of judgment issued out of Surrogate’s Court — Supreme Court — motions and orders.
    After the probate of a will the executor renounced his appointment and letters of administration with the will annexed were issued to the sole devisee and legatee under the will. Later a transcript of the decree of probate, by which an allowance of costs was made to one who appeared in person and by attorney in the proceeding and produced another alleged will of deceased, was filed in the proper county clerk’s office and docket thereof was entered in the judgment book in said office against “ Judgment debtor Estate of. Margaret MoTevey.” Under an execution issued out of the Surrogate’s Court for the collection of said judgment for costs the sheriff levied upon all the right, title and interest that said devisee and legatee had on the day of the filing of the transcript of the decree of probate in certain lands formerly belonging to testatrix, and advertised them for sale by virtue of such execution. On motion by the legatee and devisee to vacate such execution and from an order restraining the sale of said premises on the ground that said execution and notice of sale were irregular and void and that no judgment was ever rendered or entered against said legatee and devisee, it appeared that a previous motion for similar relief made in the Supreme Court was denied with costs upon the ground of lack of jurisdiction in the court to act in the premises. Held, that a preliminary objection that because of the non-payment of costs in the motion in the Supreme Court the motion to vacate the execution could not be Beard until the" expiration of ten days from the entry of the order awarding motion costs was untenable, and a further contention that section 779 of the Code of Civil Procedure does not apply because the order awarding costs was made by the Supreme Court and, therefore, does not affect the present proceeding in the Surrogate’s Court is also untenable.
    A further preliminary objection to the hearing of the motion to vacate execution upon the ground that the order to show cause by which the application was instituted was granted by a county judge of an adjoining county was obviated by the making of an order by the surrogate on the return of the order to show cause returnable forthwith upon the motion papers.
    As the devisee and legatee under the will was not at the time of the granting of the decree of probate a representative or prospective representative of the estate no docket could properly be made against her individually in the county clerk’s office ' upon the decree of probate nor could any execution be issued against her personally upon such decree, and her motion to vacate should be granted, with costs, in case the costs of the former motion in the Supreme Court are paid within three days • after service of the order to be entered thereon, otherwise the application should be dismissed with costs of the motion with leave to renew the same on payment of costs of all proceedings.
    Proceeding upon the probate of a will.
    Owen D. Connelly, for Minnie O’Donnell.
    Robert W. Fisher, for Daniel Learning.
   Ostrander, S.

The deceased died at Mechanicville, November 13,1914. She left a last will and testament dated June 9, 1914, which was admitted to probate March 19, 1915. On the proceeding for probate-another alleged will of the deceased was produced by Daniel Learning, who appeared in person and by his attorney, Robert W. Fisher, in favor of said last mentioned will. In the decree for probate of the -will of June 9, 1914, an allowance of costs was made to said Learning. In the will of June 9, 1914, Oscar Warner was named as executor. Subsequently to the probate he renounced such appointment and on March 27, 1915, letters of administration with the will annexed were issued to Minnie O’Donnell, who was named as sole legatee and devisee under the will. About November 5, 1915, a transcript of the decree admitting said' will to probate was filed in the office of the clerk of Saratoga county and docket thereof entered in the judgment book in said county clerk’s office against “ Judgment debtor Estate of Margaret McTevey. ’ ’

About November 5, 1915, an execution was issued out of the Surrogate’s Court for collection of said fifty-eight dollars costs. The form of the execution does not appear in this proceeding, but the sheriff has levied upon all the right, title and interest that Minnie O’Donnell had on the 5th day of November, 1915, in certain lands, being lands formerly belonging to Margaret McTevey, and advertised it for sale by virtue of such execution, issued under the decree and docket thereof above mentioned.

This motion is made by Minnie O’Donnell to vacate said execution and for an order restraining Fisher, Learning and the sheriff from proceeding with the sale of said premises on the ground that the said execution and the notice of sale are irregular and' void and that no judgment was ever rendered or entered against Minnie O’Donnell.

It appears that amotion for similar relief was made in the Supreme Court prior to this application and was denied with ten dollars costs upon the ground of lack of jurisdiction in the Supreme Court to act in the premises.

A preliminary objection is made by Mr. Fisher that this application cannot be heard for the reason that Minnie O’Donnell has not paid the costs of the motion in the Supreme Court and is therefore stayed from taking any proceeding until the payment of such costs under the provisions of section 779 of the Code.

This motion was made and this hearing is had before expiration of ten days from the entry of the order awarding motion costs in the Supreme Court, .and it is urged that until the expiration of such ten days Minnie O'Donnell is not in default and cannot be stayed. This contention is ill founded. Hazard v. Wilson, 3 Abb. N. C. 50, 52. It was also urged that section 779 does not apply because the order awarding costs was made by the Supreme Court and therefore does not affect this proceeding in Surrogate’s Court. But in Hempsted v. White Sewing Machine Co., 134 App. Div. 575, where an action had been dismissed by the Municipal Court for lack of jurisdiction, proceedings in an action brought for the same cause in the Supreme Court were held to be stayed until payment of costs of the former action. By analogy the same rule must be applied in this case. But the rights of the parties may be protected under the rule applied in Wessels v. Boettcher,. 142 N. Y. 212, where it was held that the only effect of violation of the stay was to render the new proceeding irregular and to subject the moving party to such disposition as to the court should seem proper. In that case a motion to set aside an attachment procured in violation of the stay was denied in case the plaintiff paid costs of the former action within a time fixed by the order denying the motion to vacate.

A further preliminary objection was taken to the hearing of this motion upon the ground that the order to show cause by which this application was instituted was granted by the county judge of Rensselaer county. This objection was obviated by the making of an order by the surrogate at the return of the show cause order returnable forthwith upon the motion papers.

We come then to the merits of the motion. It will be noted that the decree by which allowance was made to • Daniel Learning was not made against Minnie O’Donnell personally. It was decreed to be payable from the estate of Margaret McTevey. Minnie O’Donnell was not at the time of such decree a representative or prospective 'representative of the estate. No docket has been made or could properly be made against her individually in the county clerk’s office upon the decree of probate nor could any execution be issued against her personally, based upon such decree.

The application should be granted with ten dollars costs to the moving party, in case the moving party pays the costs of the former motion in the Supreme Court within three days after service of this order, otherwise the application should be dismissed with ten-dollars costs of this motion, with leave to renew the motion on payment of costs of all proceedings.

Decreed accordingly.  