
    Amos D. Coe and Flavius J. Coe, as Executors, etc., of Amanda M. Coe, Respondents, v. William Cobb, as Executor, etc., of Stephen Beach, Deceased, Appellant, Impleaded with Others.
    
      Pleading — complaint in an action by a creditor of a decedent to establish a lien, on surplus moneys — when insufficient as such, and also insufficient as one against the next of lain, heirs and devisees of the decedent.
    
    The complaint in an action alleged that the plaintiff had a claim against the estate of a testator; that more than three years had elapsed since letters testamentary upon his estate had been granted to one of the defendants; that the personal assets of the testator were not sufficient to pay the plaintiff’s debt, in addition to the expenses of administration and the debts of a prior class; that all the real estate of which the testator died seized was sold in an action for the foreclosure of a mortgage thereon, and that the surplus arising upon such sale was paid into the county treasury. It also alleged that each of the defendants have, or claim to have, as heirs at law, legatees or devisees, some interest in said surplus, and that the interest therein, which descended to the heirs at law, would not be sufficient to pay the plaintiff’s claim; that no proceedings had been had at law or otherwise, and no other action had been brought to recover the plaintiff’s claim.
    The complaint demanded judgment that the amount of the plaintiff’s debt be adjudged to be a lien upon such surplus, and that the same be awarded to the plaintiff.
    
      Seld, that the action could not be maintained as one to establish a lien on surplus moneys paid into the Surrogate’s Court, as moneys so deposited can only be disposed of by the surrogate in the proceedings prescribed by the Code of Civil Procedure;
    'That the complaint’ did not state facts sufficient to constitute a cause of action against the next of kin, legatees, heirs and devisees of the testator, under section 1837 et seq. of the Code of Civil Procedure.
    Appeal by the defendant, William Cobb, as executor, etc., of Stephen Beach, deceased, from a judgment of the Supreme Court in favor of Amanda M. Coe, deceased, entered in the office of the cleric of the county of Ontario on the 21th day of June, 1899, upon the decision of the court overruling the said defendant’s demurrer to the plaintiff’s complaint, made on the ground that it did not state facts sufficient to constitute a cause of action against said defendant.
    The action.was brought by Amanda M. Coe, who died pending the appeal. Her- executors were thereupon’substituted in her stead.
    
      
      Walter H. Knapp, for the appellant.
    
      Charles Ward, for the respondents.
   Williams, J. :

The complaint in brief shows that the plaintiff had a claim against the estate of which the defendant appellant is the executor, amounting to $2,134.13, with interest thereon from February 3, 1898; , that defendant’s testator died April 11, 1890, leaving a will of real and personal estate, which was duly probated in Ontario county, and letters testamentary were issued to the appellant June 16,1890; that more than three years have elapsed since the granting of such letters and since the death of such testator; that the personal assets of such testator were not sufficient to pay plaintiff’s debt, in addition to the expenses of administration and the debts of a prior class; that all the real estate of which said testator died seized was sold in an action for the foreclosure of a mortgage thereon, and in such action there was paid into the Ontario county treasury, as surplus funds arising upon such sale, the sum of $1,319.39 ; that each of the defendants have, or claim to have, as heir at law, legatee or devisee, some interest in said surplus funds, and that the interest therein which descended to the heirs at law would not be sufficient to pay the plaintiff’s claim; that no proceedings have been had at law or otherwise, and no other action has been brought to recover plaintiff’s claim herein; and then plaintiff demands judgment that the amount of his debt be declared and adjudged as a lien upon such surplus, and that the same may be awarded to the plaintiff, with such other relief as may be just.

It is difficult to ascertain from the complaint itself, or from the brief of the respondent upon this appeal, precisely what the cause of action is claimed by the respondent to be. At one time he seems to claim it is an action against the executor to recover a judgment upon plaintiff’s claim, at another he seems to claim that the action is under section 1831 et seq. of the Code of Civil Procedure, against next of kin, legatees, heirs and devisees. We may as well conclude that the action is brought as the prayer for relief indicates, to have the plaintiff’s claim declared to be a lien upon the surplus moneys, and to have the moneys awarded to plaintiff thereon.

■ It does not seem to us that the complaint is sufficient to entitle the plaintiff to such relief in the action.

First. It is provided by section 2798 of the Code of Civil Procedure, in effect, that such surplus moneys, if they result from a sale of the real estate, within four years after the issue of letters testamentary, must, after payment of all liens thereon existing at the time of the death, be paid into the Surrogate’s Court, pursuant to section 2537. And by section 2537 it is provided that payment into Surrogate’s Court is made by paying to the county treasurer to the credit of the estate.

The complaint does not show whether the sale from which this surplus arose took place within the four years or not. It does not state when the sale took place. And more than this, the complaint does not show whether the surplus was paid into the Supreme Court or the Surrogate’s Court. The allegation is that it was paid into the coumty treasury, and it would be in the treasurer’s hands whether paid into one court or the other. If the surplus is in the Surrogate’s Court, or is entitled to be paid into that court, as provided by section 2798 of the Code of Civil Procedure, then the same can only be disposed of by the surrogate under proceedings prescribed by the Code of Civil Procedure, and this action to establish a lien thereon, and to recover the same, cannot be maintained.

In this respect the complaint fails to state facts sufficient to constitute a cause of action.

Second. The complaint does not state facts sufficient to constitute a cause of action under section 1837 et sey. of the Code of Civil Procedure. It does not state what disposition, if any, the will made of the real estate, whether the executor or any of the defendants were given any interest therein, or whether the defendants were any of them next of kin, legatees, heirs or devisees of the testator. Nor does the complaint show that the action was brought against all the heirs or devisees of the testator, as required by section 1846.

The complaint is not good, is entirely insufficient, and defendants should not be compelled to answer and go to trial upon such a pleading. If the plaintiff has a cause of action he should set it out in his complaint, so that the defendants may understand it.

The judgment overruling the demurrer appealed from should be reversed, with costs of appeal, and the demurrer sustained, with costs, and with the usual leave to plead over, upon payment of costs.

All concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiffs to amend their complaint upon payment of the costs of the demurrer and of this appeal.  