
    Mary Hughes et al., Plaintiffs, v. Margaret Golden et al., Defendants.
    (Supreme Court, Kings Special Term,
    June, 1904.)
    Partition — Unsecured creditors, of the deceased owner of the fee, when protected in partition—Avoidance of multiplicity of actions — The creditors may reach personalty which the administrator paid for the transfer tax on realty descending to the heirs.
    Where unsecured creditors, of a decedent intestate whose personalty proved insufficient to pay his debts, and who, as well as the administrator of the decedent, took no proceedings to sell hi# real estate for his debts within-three years after letters of administration were first issued upon his estate, are made parties to an action, "brought by the heirs, to partition his real estate, and it therein appears that, on the final accounting of the administrator to which the heirs of the decedent were parties, the claims of these creditors were established, the Supreme Court will, in the action of partition, protect the creditors and, to avoid multiplicity of actions, will not remit them to their action against the heirs under Code Civ. Pro., § 1843, it appearing that there are many heirs, that some are non-residents of the- State of New York and that the shares of some are very small.
    Where it appears that the' administrator has paid from personalty the transfer tax on realty, to which the heirs succeeded under the decedent, the administrator is subrogated to that ,elaim for the benefit of the creditors.
    Motion to confirm referee’s report, in partition and hear- - ing of exceptions, filed by unsecured creditors who were found by the referee to have no lien upon or interest in the real estate or proceeds of sale.
    Thomas F. Murtha, for plaintiffs. .
    Smith & Campbell, for creditors.
    R. M. Cahoone, for administrator.
   Maddox, J.

The personal estate is the primary fund for the payment of debts and when found to he insufficient., the land may be resorted to, hut such proceedings must he had within three years after letters were first issued. Code Civ. Pro., § 2750: Here that period of time has long since elapsed, and though the personalty was insufficient, such proceeding was not instituted by the administrator or any creditor. The account of the administrator has been settled and passed, and the claims of the creditors have been established on the accounting proceeding to which it appears the heirs were parties.

While the creditors are not necessary parties to this action, still they are before the court, and in equity their rights should be protected; if not protected here they will be remitted to their action against the heirs under section 1843 of the Code of Civil Procedure, and many of such heirs are nonresidents of the State and of the county, and the shares of some are very small, viz.: the one-seven hundred and thirty-fifth part. To so remit the creditors would result in a multiplicity of actions, when all right can be determined here.

The administrator has paid from the. personal estate the transfer tax, a claim against those to whom the property descended, and in equity the administrator is subrogated to that claim for the benefit of the creditors, for they had the right to the application of such personalty to the payment of their debts.

Let report be modified so as to provide for the payment of the creditors, or of a sufficient sum to the administrator, to enable him to pay said creditors.

Beferee’s report modified.  