
    
      In re Jansen’s Estate.
    (Surrogate’s Court, Westchester County.
    February, 1889.)
    1. Executors and Administrators—Execution against Realty—Powers of Surrogate.
    Under Code Civil Proo. N. Y. §§ 1835,1836, authorizing the surrogate to grant an order permitting execution to issue in an action relating to the estate of a decedent on a judgment against the executor or administrator, and providing for the collection of the judgment out of decedent’s assets, the surrogate has no power to per- ■ mit an execution against real estate.
    3. Same—Actions Concerning Estate—Death by Wrongful Act.
    An action under the provisions of sections 1903,1903, by an administrator or executor of a decedent, to recover damages for the benefit of his next of kin against the persons by whose wrongful act, neglect, or default decedent’s death was caused, is not an action relating to decedent’s estate.
    
      Application by Jay E. Tibbetts and George Kellogg, made by direction of a special term of the supreme court, to obtain leave from the surrogate to issue executions on judgments rendered in their favor for costs in an action against them by Catharine Jansen, as administratrix of August H. Jansen, deceased, for negligently causing the death of her intestate. Deceased left no personal property, and the judgments were made Ijens on his land. Code Civil Proc. §§ 1825, 1826, which relate to actions relating to the estate of a decedent, provide that an execution shall not be issued on a judgment for a sum of money against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued; and, where it appears that-the assets are not sufficient to pay all the debts, legacies, or other claims of the class to which plaintiff’s claim belongs, the sum directed to be collected, by the execution shall exceed the plaintiff’s just proportion of the assets.
    
      Wm. R. Spooner and Russell Frost, for motion. N. A. Lawlor, opposed.
   Coffin, S.

It is not within the province of this court to question the power of the learned justice to make the order referred to; but, as the action did not relate to any part of the estate left by the deceased, and as section 1823, under the authority of which the order was made establishing the lien on the real estate of the deceased, occurs under article 1, tit. 3, c. 15, of the Code of Civil Procedure, which speaks only of “actions relating to the estate of a decedent,” the power to make such order may fairly be regarded as questionable. The section seems to have reference to section 1852, which authorizes the court to-direct that the judgment against the heir at-law or devisee be collected out of specific real property. But with that this court has no concern, except that it must determine whether the judgment has been obtained in an action relating to the estate of a decedent, and, if it has, then it may, if the decedent left assets, under the provisions of sections 1825 and 1826, and in such cases only,, make the order sought.

There seems to be but three cases in which the surrogate’s court has anything to do with the issuing of an execution. Sha first is where a judgment was obtained against a person in his life-time, since deceased, under section 1380. The second is where a judgment has been recovered against an executor or administrator for a sum of money under sections 1825 and 1826, supra. And the third is where the surrogate himself may issue an execution under section 2554. The second is the only one with which we are here concerned. The sections (1825 and 1826) are intended as substitutes, with amendments, for 2 Rev. St. p. 88, § 32, and p. 115, § 13, and relate solely to the collection of debts, legacies, and distributive shares for which judgments have been obtained out of the assets of the decedent. They confer no power upon the surrogate to permit an execution to be issued against real estate. The very sections themselves point out the manner in which the surrogate shall ascertain the amount for which the execution is to issue. If an accounting shall have-been had, it is a matter of calculation, if the balance of assets is insufficient to pay all claims of an equal degree in full, to ascertain the pro rata share for which the execution shall go. If the assets are admittedly sufficient, then it will issue for the whole amount due. If there has been no accounting, and a question be raised as to the sufficiency of the assets, then the surrogate may, under the provisions of section 2723, require an intermediate accounting; and, if it shall appear that there are no assets, as in this case, then no execution can be issued, because there is nothing on which it can operate. But granting that the assets were here abundant, as the judgments have not been obtained in an action relating to the decedent’s estate, no steps can be taken by this court looking to the collection thereof. The sections under which it is-asked that the order be made have reference only to claims that belonged to-the decedent in his life-time, or to claims existing against him at the time of his death, or judgments for distributive shares, or for legacies, where he died testate. The claim, which the widow of the intestate, as administratrix, sought to recover, is created by statute, (Code, § 1902,) and had no existence during his life-time. His death gave birth to the claim. It surely was no part of the estate left by him, and her action in no sense could be styled “an action relating to decedent’s estate.” It is true that, if any damages had been recovered in the action, and collected, they should have been accounted for in this court “as if they were assets,” but would have belonged exclusively to the widow and next of kin, without regard to any debts of the deceased, or expense of administration. But this provision (section 1903) does not make them assets. It excludes the idea of their being such. It would be foreign to this case to endeavor to consider what other remedy the defendants may pursue for the recovery of their costs embraced in the judgment. It is sufficient that this court is powerless to render them any aid. Motion denied, with $10 costs.  