
    In re WING et al.
    (Supreme Court, General Term, Fifth Department.
    December 27, 1894.)
    1. Insanity—Priority of Claims against Lunatic—Judgments.
    Where a judgment was recovered against a lunatic before inquisitioni found, but execution was not issued until afterwards, the judgment creditor acquired no lien on the lunatic’s property which will entitle him to preference over other creditors, nor does Code Civ. Proc. § 2719, apply, which gives preference to judgments in the order of their docketing, in-the distribution of decedents’ estates.
    2. Same—Jurisdiction of County Court.
    Code Civ. Proc. § 2320, provides that, where two courts have concurrent? jurisdiction over the affairs of a lunatic, jurisdiction of the court first exercising it becomes exclusive of that of the other. Section 2321 provides that the court must direct payment of the lunatic’s debts out of his-estate. Held, that where the original proceeding to appoint a committee was in the county court, which has concurrent jurisdiction with the supreme court over such matters (Code Civ. Proc. § 340, subd. 4), the supreme court cannot make an order for payment of the lunatic’s debts.
    Appeal from special term, Erie county.
    Petition by James C. Wing and others for an order directing the committee of a lunatic to pay a judgment recovered by respondents before inquisition found, but upon which execution was-not issued until after the appointment of the committee. The petition was granted, and the committee appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    D. E. Brong, for appellant.
    E. C. Hart, for respondents.
   DWIGHT, P. J.

The petitioners, having failed to issue exemption on their judgment until after the personal property had come into the hands of the committee, acquired no lien thereon, and, so-far as we understand, are entitled to no preference in the distribution of that estate. The statutory prescription in this respect is that the court must provide for the payment of the debts' of the lunatic out of the proceeds of his property. Code Civ. Proc. § 2321. This, of course, means all of his debts, so far as his property will go, and necessitates a pro rata distribution in case the property is not sufficient to pay the debts in full; the case of a general or specific lien being, as we conceive, the only exception to this rule. In re Otis, 101 N. Y. 583, 5 N. E. 571. The statute which gives preference to judgments in the order of their docketing, in the distribution of the estates of deceased persons (Code Civ. Proc. § 2719), affords no rule for any other case than that specified therein. It cannot be applied by analogy to-the case of the estates of lunatics. But there is another objection to the order appealed from which we suppose is insuperable, viz. that of want of jurisdiction in the court which made it. The petition shows that the original proceeding for the appointment of a committee in this case was taken in the county court of Niagara county, and inquisition was had therein, and the committee was appointed by the court last named. That court had jurisdiction concurrent with the supreme court to entertain the proceeding. Code Civ. Proc. § 340, subd. 4. But by the provision of section •2320 of the same statute, the two courts having jurisdiction of those matters concurrent with each other, the jurisdiction of the .court first exercising it became exclusive of that of the other, “with respect to any matter within its jurisdiction for which provision is made” in the title in which that section occurs; and it is in the .next section of the same title that provision is made for the payment of the debts of the lunatic. Id. § 2321. The effect of the provision of section 2320, supra, the county court having first ex-ercised the jurisdiction therein mentioned, must, therefore, have been to exclude the supreme court from jurisdiction of any matter relating to the payment of the debts of the lunatic in this case, .and that objection is one which may be taken for the first time on appeal. On either of the grounds mentioned the order appealed from seems to have been erroneous, and it must be reversed. All concur.

So ordered, with $10 costs and disbursements.  