
    In the Matter of the Application of James C. Wing et al.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    1. Lunatic—Judgment—Priority.
    A creditor, who recovers a judgment before, but fails to issue execution thereon until after, the personal property comes into the hands of the committee, acquires no lien thereon and is entitled to no preference in the distribution of the lunatic’s estate.
    3. Same—Jurisdiction. .
    Where the original proceeding to appoint a committee was in the county court, the supreme court cannot make an order for the payment of the lunatic’s debts.
    
      Appeal from an order, directing the committee of the lunatic to pay a judgment.
    
      D. E. Brong, for app’lt; E. C. Hart, for resp’ts.
   Dwight, J.

The petitioners, having failed to issue execution

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 necessitate 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. 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 exercised 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,  