
    
      The Real Estate of M. Hopper Mott.
    Application for leave ,to issue execution against the real estate of a person who had been dead eight years.. Review of the statutory provisions on the subjecti • - - '■ : -• - 1
    Alfred McIntire, for Petitioner. ....
   - ■ The Surrogate.

This is an application by a'judgment -creditor, by petition to the • Sufrbgaté, asking permission to issue execution against the real estate of the intestate, •under the following provisions of law :

“ If a party die after Judgment rendered against him, but before execution issued thereon, the .remedy on such ■judgment shall not be suspended by reason of the non-age » of any heir of such party,, but no execution .shall issue on any such judgment, until the expiration of one year after the death of the party against whom the same was rendered.” (R. S., 3d vol., 5th ed., p. 649, §§ 27, 41.)

“ In case of the death of a judgment 'debtor after judgment,' the heirs,- devisees or legatees of the judgment - debtor, or the" tenants of real-property • owned by him and ■affected by the judgment, may,' after the 'expiration of ■ three years from the time of granting letters testamentary or of administration upon the estate of the' testator, or ■ intestate, be summoned to -show cause why the judgment should not -be enforced against" the estate of the judgment "debtor -in their hands respectively, and' the personal representatives of a- deceased judgment debtor may be so "summoned at any time within one year after their' appointment.” '{0od-e¡ §376, as amended in 1849'.)"' "

“ notwithstanding "the death of a party after judgment, • execution thereon-against "any property, lands, tenements, real estate, or chattels real, upon which such judgment " shall be" a lien, -either .in- law or equity, may be issued and ■executed in-the samemanner and with the" same-effect as if he were still living, except that such execution cannot be issued within a year after the death of the defendant, nor in any case unless upon permission granted by the Surrogate of the county, who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor) which Surrogate may, on 'sufficient carise shown, mate an order granting, permission to issue such execution as aforesaid.” (Act of 1850, oh. 295, v. 639.) " ‘ ' ' " " '

- In the case at bar, the. petitioner’s j udgment ’ was -recovered against,the intestate in.the 27ew York Common Pleas, on. the lYth October, 1855. More than eight years have elapsed since the entry of the judgment.. An execution was issued:upon it in the lifetime of the defendant and returned unsatisfied; but none has been issued against his representatives , or his realty since his death, up to this time. There is no administrator of the goods of the intestate, and the proof is that he left no personal assets.

The Code has still another provision applicable to this case. . .

After the lapse of five years from the entry of judgment, an execution can be issued only by leave of . the Court, upon motion, with personal notice to the adverse party, unless he be absent or non-resident, or cannot be found to make such service, in which cage such service may be made by publication, or in such other manner as the Court may direct,” &c. (Code, § 284, as amended in 1858,)

' It would appear from Howard v. Clark, 11 Howard Pr. R., p. 209, and Bellinger v. Ford, 21 Barbour, 311, that the permission of the' Surrogate is to be given before the application be made to .the Court in "which judgment has been rendered. The application to be there made will have to be on notice to the advérse party, who is here the

heir-at-law! ......

" Permission granted.  