
    Luana J. Howell, as Executrix, etc., of Christeon G. Howell, Deceased, Appellant, v. Agnes Wallace and Others, Respondents, Impleaded with Frank L. Pease.
    
      Copartnership—where one partner dies and his executor conveys his interests to his copartner— acts of a landlord which operate to discharge the decedent’s estate from liability for rent of premises occupied by the firm and thereafter by the survivor — the remedy against legatees is in equity— liability of each legatee.
    
    After the death of one of two copartners, the surviving partner continued to occupy the premises in which the copartnership business had been carried on, and subsequently the executor of the deceased partner conveyed the interest of his testator in the business to the surviving partner, in consideration of the latter’s assuming the firm liabilities. Subsequently, the landlord of the premises in which the business of the copartnership and of the surviving partner was carried on, with knowledge of the transfer by the executor of the deceased partner, had an adjustment of accounts with the surviving partner, and included in his statement a note given by the firm before the death of the partner for rent then due, and credited thereon whatever payments had been made by the surviving partner, and also whatever accounts the surviving partner or the firm had against him; and the entire account, thus commingled, was liquidated by the surviving partner paying a part and giving his individual note for the balance. The surviving partner having failed, the landlord brought an action against him for the amount of the indebtedness, and recovered judgment therein, and, execution having been returned unsatisfied, he brought an action against the legatees of the deceased partner, without offering to surrender the note or cancel the judgment, or assailing as fraudulent the transfer from the executor of the deceased partner to the surviving partner, or the conduct of the surviving partner in giving the note.
    
      Beld, that the action could not be maintained, as it was- evident that the landlord intended to treat the surviving partner as his exclusive debtor.
    
      Sections 1837 et seg. of the Code of Civil Procedure contemplate that an action he brought in equity, to enforce a claim owing by a decedent, against his legatees; the liability of each legatee does not exceed the money received by him from the decedent's estate.
    Appeal by the plaintiff, Luana J. Howell, as executrix, etc., of Christeon Gr. Howell, deceased, from two judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Steuben on the 16th and 17th days of June, 189S,. upon the decision of the court rendered after a trial before the court without a jury at the Steuben Trial Term dismissing the complaint.
    Prior to January 1, 1894, Mathias Schenck and Frank L. Pease leased of Christeon Gh Howell a store in Corning, at the stipulated rental of $40 per month, and, as copartners, continued in the occupancy thereof, under this arrangement, until the death of Schenck October 27,1895. On November first preceding the copartners had a settlement with Howell and gave him their firm note for $200, the balance then due for rent. After the death of Schenck the surviving partner, Pease, remained in possession of the store and carried on the business without change until March 16, 1896, when the executor of Schenck sold to him the business, in consideration of which Pease assumed all the firm liabilities. Howell knew of this transfer, and after it was made Pease occupied the store, carrying on the business in his own name, having a sign indicating that fact, and attorning to the landlord until October, 1897, when he failed in business. In the early part of November, 1896, Howell and Pease had an adjustment of their affairs, and, including the $200-note given by Schenck and Pease, there was a balance due Howell of $677. Pease paid $77 of that indebtedness, and gave his note, due one day after date, as evidence of the balance of the demand. After the failure of Pease, and on the 4th day of October, 1897, Howell sued him on the note and for the use and occupation of the premises subsequent to its date; and, on November third of that year, recovered a judgment against him for $721.85. Execution was returned unsatisfied, and proceedings supplemental to execution were instituted against him. Schenck by his will bequeathed his property to various legatees, who, with the exception of Pease, constitute the defendants in this action, which was commenced November 20, 1897. The executor of the will had a judicial settlement of his account in the Surrogate’s Court, and a distribution of the assets was made to said defending legatees in pursuance of the decree ■entered on the judicial settlement of the account of the executor. No claim was presented to the executor by Howell, and no offer to surrender the note, or cancel the judgment, was made by him until on the trial. The agreement between the executor and Pease is not assailed as fraudulent. The plaintiff is the executrix of Christeon Howell, who died since the appeal was taken.
    
      Jamies O. Sebring, for the appellant.
    
      Francis A. Williams and William J. Tully, for the respondents.
   Spring, J.:

The plaintiff seeks to charge the defending legatees in accordance with sections 1837 et seq. of the Code of Civil Procedure. It is very obvious Christeon Howell, the plaintiff’s testator, intended to treat the defendant Pease as the exclusive debtor. He knew of the fact that Pease had purchased the interest of his former copartner ■of his executor, that by this purchase Pease assumed the paymént of the firm’s indebtedness, and after this Howell recognized and assented to this agreement by accepting rent from Pease and treating him as his tenant. Of course the agreement between the executor and Pease would not ipso facto absolve the executor from liability to Howell for any indebtedness outstanding against Schenck at the time of his death ; but the facts exonerating the executor do not depend upon that circumstance, but upon other facts arising from it. After a few months the landlord had a casting up of accounts with his tenant; he included in ins statement the firm note and the rents up to that date, and credited whatever payments had been made by Pease, and also whatever store account the latter or the firm had against him, and this entire account, thus commingled, was liquidated by Pease paying a part and giving his note for the major part of the indebtedness. There was no suggestion that this transaction was effected by Pease as surviving partner. The note is by him individually. After this payments were made on the note, and Pease continued paying rent to Howell and occupying his store until his failure. Then there was no offer to return the note to Pease, but, instead, Howell recovered judgment against him. With this judgment still in existence he sought to enforce his demand against the legatees of Schenck. The complaint does not contain an offer to return this note or cancel this judgment. There is no averment and no proof assailing as fraudulent the .conduct of Pease in giving the note, and not the slightest suggestion in the record that the executor, by selling the interest of. Schenck in the firm assets to Pease, was. engaged in any endeavor to defraud Howell. The scheme to make the legatees pay this claim was an afterthought originating in the suspension of business by Pease. Howell was in no situation to rescind his arrangement with Pease, as he possessed as much knowledge as the executor of his circumstances and of everything pertaining to the assumption of the firm’s debts by him. With that knowledge he accepted the fruits of the arrangement by receiving payments • from Pease and receiving money for the use and occupation of the building by him. In no event can this action be maintained. If the plaintiff’s contention is- correct, he must bring a suit in equity, offering to rescind the arrangement with Pease and to cancel the judgment, with suitable averments showing Howell was the victim of a trick and a fraud.

There is still another insuperable objection to plaintiff’s recovery in this action.

The practice provided in section 1837 and succeeding sections of the Code of Civil Procedure permits a creditor of a decedent to pursue the property after distribution in the hands of the legatees, or next of kin, and provides that each person taking is liable to the extent of the property received by him, and section 1839 provides for a ratable apportionment among the recipients of the decedent. This contemplates an action in equity to adjust these various rights. That is well illustrated in this case. The legatees are eight in number, receiving varying sums, and not one $150 in amount. Yet, if plaintiff’s contention is correct, each legatee is liable personally for the full amount of this indebtedness, which is vastly in excess of what any legatee has received. The whole scope of the practice provided by these sections is to limit the liability of the legatee or next of kin to the property derived from the decedent.

The judgment of the trial court is affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  