
    James C. Hiscock et al., Resp’ts, v. Polly Fulton et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    1. Execution—Legacy chargeable on real estate.
    A legatee whose legacy is not made chargeable on real estate by the" terms of the will, but is chargeable thereon by reason of existing circurm stances and the presumed intention of the testator, possesses no interest in. the real estate which is leviable by execution.
    2. Legacy—Interest.
    A legacy draws interest from the issue of letters testamentary, and note from the death of testator.
    3. Same—Action by creditor oe legatee.
    In an action by.a. creditor of the legatee to charge the legacy on real estate, the only judgment which the plaintiff is entitled to is one making-his recovery a lien on the real estate, and that her interest therein shall be-sold under the direction of the court.
    Appeal by the defendants, other than Aaron Garrett, executor, etc., of David Hartman, deceased, from a judgment entered in Monroe county March 30, 1891, on the decision of the court at-special term held in the month of September, 1890.
    jSI H. Cane, for app’lts; JSdward Webster, for resp’ts.
   Macomber, J.

This action is brought, as is claimed by the counsel for the respondents, for the purpose of charging a legacy upon real estate.

The respondents are judgment creditors of the appellants, Polly .Pulton and her husband James C. Fulton. These two last named persons did, on the 9th day of May, 1877, duly confess a judgment to the plaintiffs in the sum of $612.37, being for merchandise .sold and delivered them by to the plaintiffs. Execution on such judgment, in pursuance of an order made by the special term, was issued May 5, 1887, to the sheriff of the county of Monroe, who, finding no personal property belonging to either of the judgment debtors, did, on the 6th day of May of that year, levy on the supposed interest of the defendant, Polly Fulton, in the lands de.scribed in the complaint in this action, advertised the same to be .sold at public auction, and subsequently sold the same at a public .■sale, at which the property was struck off to the plaintiffs, who were the highest bidders, for the sum of $500, and the certificate «of sale stating that to be the highest bid was subsequently delivered to them by the sheriff, and filed in the proper office July 2, 1889. No person entitled to do so having redeemed or offered to redeem the premises within the fifteen months under the statute, a sheriff’s deed was executed and delivered to the plaintiffs of the supposed interest of Polly Fulton in the lands described in the complaint, which consist of two parcels, both situate in the town of Greece, Monroe county, one of twenty and three-fourths -acres, and the other of fifty acres.

While it is probable that the plaintiffs may ultimately succeed in this action, and have their judgment charged upon the interest of Polly Fulton in the real estate left by her father, we are, nevertheless, of the opinion that the judgment' appealed from cannot, under the facts established, be affirmed; for the reason, that the plaintiffs have proceeded upon a mistaken method to enforce the sights which they seem to possess.

Their claim is based upon the following facts. The defendant, Polly Fulton, is the daughter of David Hartman, who died in the town of Greece August 6, 1886, leaving a last will and testament which was afterwards admitted "to probate by the surrogate of Monroe county. By this will, which bears date the 18th day of June, 1885, Hartman, made the following bequests and devises to his children: to Benjamin, Simon and M. Sela Hartman,' Polly Fulton, Matilda Taber, and Margaret Cole, each the sum of $600; and to his daughter, Susan A. Hartman, the sum of $1,000, making in the aggregate of such bequests the sum of $4,600, together with a gift of the household furniture to the four daughters. ■ In the residuary clause of the will, the testator devised to his three sons all the rest and residue of his estate, both real and personal.

The personal property left by the testator did not, at the time of making the will or at any time subsequently thereto, exceed in amount the sum of $400, and, hence, was manifestly incapable ■of discharging any considerable part of the money bequests above -mentioned. This fact was well known to the testator; conse■quently the court has, at special term, very properly found as a conclusion of fact, that it was the intention of the testator to ■charge the payment of these respective money legacies upon his real estate. Briggs v. Carroll, 117 N. Y., 288; 27 St. Rep., 468; McCorn v. McCorn, 100 N. Y., 511; Morris v. Sickly, 57 Hun, 563; 33 St. Rep., 741.

Upon the judgment above mentioned an execution was duly-issued to the proper sheriff, and the. latter, finding no personal property, levied upon the supposed interest of Polly Fulton in the real estate left by her father; a sale thereof was had, and her interest was struck off to the plaintiffs for the sum of $500. There is no proof that this sum was applied on the judgment recovered by the plaintiffs against Polly Fulton and her husband, nor is the execution and the return made by the sheriff thereon laid before ns in the appeal papers.

It is, however, quite clear that Polly Fulton possessed under the will no interest in the real estate of her father which was leviable by execution. As appears above, the real estate was wholly devised in the residuary clause of the will to other persons. No-equitable rights which she may have possessed therein could be enforced, except after a judgment of a competent court, adjudicating that her legacy of $600 was chargeable upon the real estate, and should be collected therefrom before the residuary clause-could take effect. The proper remedy of the plaintiffs, after recovering the judgment, and the return of execution thereon, was-an action for that purpose.

There are facts alleged in the complaint, and found by the trial court, which, standing by themselves, would be sufficient, probably, to afford such relief, and we should be inclined, in this instance, to adopt, such findings and to administer the proper relief,, were it not for certain other matters appearing in the case which preclude it. For instance, it is alleged in the complaint, that, under the execution issued upon the judgment against Polly Fulton and her husband the interest of Polly Fulton was seized and sold to the plaintiffs fat the sum of $500. Whether the-judgment has been reduced to that amount or not does not appear. It is clear to us, however, that there has been no actual-reduction of the amount unpaid upon such judgment Yet, as-the case now stands, there appears to be enforceable against the real estate only'the residue of such judgment after deducting the-amount of the bid.

The issuing of the execution upon that judgment was an absolute nullity. Yet, the fact that it was issued, and a sale made-thereunder, in the manner stated in the complaint, may be relieved against by an amendment of the complaint. On the-whole, we think such an amendment, however, should be made on application to the special term.

In certain minor details herein the judgment, in any event, should be corrected. If we understand the findings correctly, interest has been added to the legacy given to the defendant, Polly Fulton, from August 6, 1887, the date of the death of the-testator, whereas it should be only from October 25, 1887, when, the letters testamentary were issued. 2 B. S., 90, § 43.

It also appears that there is undistributed, of the personal estate,, the sum of $19.14 belonging to Polly Fulton, still in the hands-of the executor. This should first be applied before resort is had to the real estate.

The judgment is general in its terms, directing a sale of all the real estate left by the testator, Hartman, and apparently an effort has been made to adjust the claims of the several parties to the fund which may be realized therefrom. We know of no authority for this form of judgment. The plaintiffs are entitled in this action, if to anything, only to a judgment determining that their recovery against Polly Fulton should be made a lien upon the real estate” left by her father, and that such real estate shall be sold under the direction of the court. After such sale, which would necessarily be of her undivided interest in all of such real estate, the purchaser would be left to pursue such remedy as well established rules of law grant him.

We are, furthermore, of the opinion that the conclusion of the learned trial judge, that the deeds, mentioned in his findings, by and to the heirs at law of Hartman, were without consideration, and were given and received for the purpose of hindering, delaying and defrauding the plaintiffs in this action. If such facts appear upon the new trial, which we have concluded to order, the plaintiffs will be entitled ' to the relief herein indicated; but the measure of such relief will be determined by the amount actually found to be unpaid upon the plaintiffs’ judgment, recov'ered by them against Polly Fulton and her husband.

The judgment appealed from should be reversed, and a new trial had, with costs to abide the final award of costs.

Judgment reversed and a new trial ordered, with costs to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.  