
    George H. Lawrence and Others, as Executors, etc., of Elizabeth H. Sias, Deceased, Respondents, v. Edward M. Grout, as Comptroller of the City of New York, Defendant, Impleaded with Regina Binninger and Others, Appellants.
    First Department,
    April 6, 1906.
    Real property — action to charge lands devised with the debt of the testator — facts which must he shown in such action—failure to show lack of assets in hands of executor — proper relief.
    When the holders of a mortgage have brought an action on the bond against the executor of the mortgagor, and during the three years following the issuing of letters testamentary during which the judgment was a lien on the decedent’s real estate, have made no application to sell other lands of the deceased mortgagor not covered by the mortgage for the payment of the debt, or to have an award made when such lands were taken by eminent domain applied upon the debt.,, such mortgagees in a subsequent action against, the residuary devisees to charge the debt upon the lands.- or their- proceeds must show pursuant to sections 1848 and 1849 of the Code- of Civil Procedure that the assets of the estate- ware insufficient tti pay the debt, or that the plaintiff has been or will he unable with due diligence to collect the claim' by proceedings in the. Surrogate’s Court, or by action against the executor or legatees or next of kin. „
    Such- inability to Collect-the debt is not shown by merely offering in evidence a document found in the Surrogate’s Court purporting to be an “intermediate account,” stating that the executor was unable) to And any substantial assets, which paper was never passed upon or settled by the surrogate.
    Such unsettled account is a mere declaration by the executor,'and section. 1848 of the Code of Civil' Procedure only makes an executor’s account presumptive evidence of lack of assets when settled by the surrogate.
    .Such plaintiff is not entitled to liave the-judgment against, the executor declared to he a lieu upon all lands in the' hands of devisees. The most that can be had is a direction that an execution he satisAed out of the lands coming to them from their testator. ■
    Appeal by the. defendants, Begina Binninger and others," from certain portions .of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 25th day of April, 1905, upon the decision of the court rendered after a trial-at the New York Special Term.' .
    
      James Z. Pearsall, for the appellant Regina Binninger.
    
      Frank Brookfield, guardian ad litem, in person, for the appellants Ida and Lillie Binninger.
    
      Louis Wendel, Jr., for the appellant. George F. Binninger, general guardian.
    
      Henry C. Henderson, for the respondents.
   Houghton, J.:

Lizetta Binninger died the 26th day of January, 1900, leaving a last will and testament by which she made her children-, the defendants Begina, Lillie :and Ida, residuary legatees and devisees. This will was admitted to probate and letters testamentary issued to Christian Trinks, the executor named .therein, February 25,1900.

The real property coming to the residuary estate consisted of-two parcels, upon one of which there were two mortgages, the second of which, accompanied by a bond given by testatrix, was held by these plaintiffs. The first mortgage was foreclosed ¿nd the property sajd4 nothing being 'realized to apply on the plaintiffs’ mortgage and bond. The other parcel, not covered by plaintiffs’ mortgage, after the death of testatrix, and after title had vested in these defendants as devisees, was condemned by the city of Hew York for street purposes, and an award was made, which, after the payment of the mortgage on the land and taxes and assessments accrued thereon, left a surplus of several hundred dollars, the exact amount of which is not stated, which at the commencement of this action was-on deposit with the comptroller of the city of Hew York to the credit of these defendants, devisees. Before the trial this fund was directed to be paid into court without prejudice to the rights of any parties thereto, and the action was discontinued as to the comptroller.

The plaintiffs brought action against the executor on the bond which had been given by his testatrix and obtained judgment against Mm, but during the three years following the issuing of letters testamentary, in which their claim was a lien against any real property of which the testatrix died seized (Code Giv. Próc. § 2749 et seq.), they made no application to sell it for payment of debts, or to have the award applied to that purpose. After the three years had expired, and on the 14th of April, 1903, they brought this action against the-defendants as devisees to charge them and their equity in the award made in the condemnation proceedings with the payment of such indebtedness.

The particular form of relief which the plaintiffs ask is that their claim be declared to be a lien upon the award, treating the fund as real estate, and that they be decreed payment thereof out of the shares of the defendant devisees therein.

Heirs of an intestate and devisees of a testator are liable for the debts of the decedent, arising by simple contract or by specialty, to the extent and value of the real property which descended or was devised to them. (Code Civ. Proc. § 1843.) The manner in which, and the conditions under which, they may be charged in an action at law is regulated by sections 1844 to 1860 of the Code of Civil Procedure. Amongst the. conditions are those found in sections 1848 and 1849, which prescribe that in such an action the plaintiff, must show that the assets of the decedent’s estate within the State were not sufficient to pay his debt, or that the plaintiff has been, or will be, unable, with due diligence, to collect his claim by proceedings in the proper Surrogate’s. Court, or by action against the executor or administrator, or legatees or next of kin. This condition with respect to their claim the plaintiffs attempted to prove, but we think they failed to do so,- and that for that reason the judgment must be reversed. . ', '

Section 1848 prescribes that an executor’s or administrator’s .account as rendered to, and, settled by, the surrogate may be used as presumptive evidence of lack of assets and inability to collect. The plaintiffs introduced in evidence what is'called-an intermediate account ” of the executor of decedent’s estate, filed in" the proper Surrogate’s Court. Ifo proof was made that this account was settled by the surrogate, or that any decree was entered thereon. - The language of the section is, “ account as rendered to, and .settled by the surrogate.” So far as the record discloses, a paper was found on file in the Surrogate’s Court jmrporting to be a statement bv the executor of Lizetta Binninger that he had been unable to find' any substantial assets belonging to her estate. Under what proceeding the account was filed does not appear, nor was it settled by the surrogate, evidenced by formal decree or otherwise. It was found on file in the surrogate’s office and was properly received in evidence, but it should have been followed by some proof that the surrogate had passed upon it and settled it as presented, or otherwise. As the. 'proof stood it was a mere declaration of the e'xecUtor that he had been unable to find any assets with which to pay debts. The executor was. not called to show th.e condition of the estate, and there was no other proof of this fact. This was a prerequisite - to the liability of these defendants as devisees, and to the charging of the real estate which descended to them, or the avails of it arising from condemnation proceedings, if that was chargeable at all.

Uor did the plaintiffs produce any proof sufficient to warrant the trial court in finding that they had been unable, or would be unable, with due diligence, to collect the debt by proceedings in the proper Surrogate’s Court, or by action against the executor or legatees. They introduced the judgment which they had obtained against the executor, but they failed to show that they had made any attempt to collect it from the executor by calling him to account, or otherwise. The mere obtaining of a judgment against an executor is not sufficient to show that fact,. .

The appellants urge, in addition to this technical defect, that the plaintiffs cannot maintain their action "under any circumstances, because the fund arising from the condemnation proceedings has lost its character of real property and has become personalty by the involuntary sale to the city. Whether this be so or not, or if so whether it would affect the ultimate result, we do not feel called upon now to determine.

Actions against legatees and heirs and devisees are very similar in character and in the objects sought to be attained. Legatees are liable as well as heirs and devisees, and the action is not defeated if one person takes the property in more than one capacity. (Code Civ. Proc. § 1860; Matteson v. Palser, 173 N. Y. 404.) Nor does the heir or devisee escape personal liability, if the plaintiff shall so elect, if he has voluntarily aliened the real property which has descended or was devised to him, for he must then respond personally for its value. (Code Civ. Proc. § 1854.) The prayer of plaintiff’s complaint is wrong, for there is no ground upon which any lien against the fund could be established,'and even if the judgment was to stand, that part of it would necessarily be modified. Where the real property still remains in the devisee or heir, the most that can be done is to direct that the execution be satisfied out of such property. (Code Civ. Proc. § 1852.) The complaint, however, as amended upon the trial, is sufficiently broad to charge the defendants as devisees with such property as came to their hands, or its value, as.all the facts are stated. The prayer for relief does not nullify the complaint in these respects. On the new trial which must be had, if the plaintiffs shall succeed, very probably the objections to the present judgment, which we have pointed out, can be obviated.

The judgment should be reversed and' a new trial granted, with one bill of costs, including the disbursements of all, to appellants to abide the event.

O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, with one bill of costs, including the disbursements of all, to the appellants to abide event. Order filed.  