
    Fitzpatrick vs. Brady and others, executors &c.
    Though the creditor of a decedent apply to- the surrogate for a decree directing the payment of a debt, under 2 R. S. 116, § 18, and the surrogate, after citing the executors or administrators, decide against the validity of the debt, and deny the application on that ground, the decision will not conclude the creditor in an action afterwards brought against the executors or administrators to recover the same debt.
    On demurrer to pléa. The declaration was upon a promissory note for $208,31, dated the 2d of October, 1834, made by Charles Brady, the defendants’ testator, and payable to the plaintiff. The defendants pleaded that, after the expiration of six months from the granting of letters testamentary, to wit, on the 1st of May, 1842, the plaintiff presented the note in question to the surrogate &c., and prayed the surrogate that the ■ same might be paid and satisfied out of the estate of the deceased, and that the defendants, as executors, might be directed and decreed to pay the same; that thereupon the defendants were cited to appear before the surrogate on a certain day specified, and appeared accordingly; that they then and there denied the claim and demand thus sought to be enforced against the estate, whereupon the surrogate proceeded to hear the proofs and allegations of the parties; and that the surrogate, after due deliberation thereupon, adjudged and decreed that there was no debt due or owing from the said estate, or from the defendants, as executors, to the said plaintiff, as by the records of said court, reference being thereunto had, will more fully appear—concluding with a verification. The plaintiff demurred, and the defendants joined in demurrer.
    
      H. P. Barber, for the plaintiff.
    
      J. T. Brady, for the defendant
   By the Court, Nelson, Ch. J.

I am of opinion that the plea constitutes no bar to the action. The statute prescribing and regulating the duties and obligations of executors and administrators, virtually allows them eighteen months after letters testamentary or of administration, to settle the estate, for the purpose of securing more effectually the leading feature of the new system, to wit, a pro rata distribution of the assets among the creditors in case of a deficiency. This is the legal effect of the several sections in the 2d and 3d articles of the revised statutes relating to the payment of debts ,&c., and the making of distribution by executors and administrators. (2 R. S. 27, 2d ed.; id. 32.) They cannot be compelled to render their accounts, nor can they voluntarily render them before the surrogate agreeably to these articles, until after the expiration of the period mentioned. (Id. 32, § 52; id. 35, § 70.)

But power is conferred upon the surrogate to inquire into the condition of the assets short of this period, at. the instance of a creditor; and if they are found sufficient and available, the surrogate may direct the payment of the debt, or a proportional part of it, as the state of the assets at the time shall seem to warrant. This was the object of the provision mainly relied on to sustain the plea in question. (Id. 52, § 18; see also §§ 20 to 23.)

True, the validity of the demand thus presented must be incidentally involved, as the surrogate is to be first satisfied that it is an existing debt against the estate, before directing the appropriation of the assets in payment of it; and he may doubtless deny the application on the ground that the demand is not sufficiently established, leaving the creditor to his legal remedy by suit, or by reference under the statute. (Id. 29, §§ 35 to 38.) Such denial, however, will not be conclusive upon the creditor, its only effect being to deprive him of the possibility of anticipating payment before the expiration of the eighteen months, or before he has established his debt in due course of law.

. We have heretofore had these several provisions incidentally under consideration, and then entertained and expressed an opinion as to the object and effect of them in coincidence with what is now more formally declared. (Butler v. Hempstead’s adm’rs, 18 Wend. 666, 668, 9.)

Judgment for the plaintiff. 
      
       See Hibshman v. Dulleban, (4 Watts’ Rep. 183.)
     