#### HERVEY ROCKWELL and another, Surviving Executors, etc., Respondents, *v.*FLORENCE GEERY and others, Appellants.

*Claim against deceased—proceedings to enforce payment of, against hei/r and devisees in case of default of personal estate*— *what constitutes such default—Judgment against executor—conclusive as to what, in proceedings against Jteirs and devisees*— *Posthumous*child— *does not occupy position of hei/r as to devisees.*

In an action brought to recover payment of a claim out of real estate belonging to the estate of a deceased debtor, heirs at law and devisees may be properly joined together as parties defendant, if the complaint allege that the real estate which passed to the heirs at law is insufficient to satisfy the claim; and in such case the *607judgment may be so framed as to direct that the estate which descended to the heirs at law be first exhausted.

The.fact that a disputed, litigated claim remains in the hands of his executors, does not prevent a creditor from proceeding against the heirs and devisees of the deceased. The fact that subsequently to the commencement of proceedings against the heirs and devisees, the executors recovered judgment in the matter thus in litigation, and sales were had thereunder, in partial satisfaction thereof, does not defeat the proceedings.

If a judgment is recovered against executors it has the effect of reducing to the amount of such judgment the claim against the deceased when it is sought to be satisfied out of real estate in the hands of his heirs and devisees, although such claim may be proved, in the proceeding against the hens and devisees, to exist for a greater amount than the judgment. The true basis of apportionment in such cases, is the value of the respective pieces of real estate at the time of the death of the testator.

The design of the statute, in reference to posthumous children, was to give them . the same portion precisely as they would have if the parent had died intestate, and where the children are the devisees, the object of the statute can only be accomplished by requiring each to contribute, in proportion to his devise, to . make up such share of the property as would have gone to the after-born in case of intestacy, and subjecting each devisee to the same burdens as the after-born in proportion to the estate held: *i. e.,*to contribute proportionally toward the payment of any claim against the deceased, to enforce which proceedings are taken against the devisees dnd heir in default of personal property.

Appeal from a judgment entered on the report of a referee.

*E. T. Rice, Charles B. Rice*and *Walter L. Livingston,*for the appellants.

*Charles H. Mundy,*for the respondent.

Davis, P. J.:

This is an action brought by the surviving executors of Charles O’Neil, to reach the real estate of Isaac Geery, deceased, now held by seven of his children as devisees of separate parcels under his will, and by Florence Geery, a posthumous child, to whom an equal undivided one-eighth of all the real estate of said Isaac Geery is claimed to have descended as heir at law. Isaac Geery was co-executor of the plaintiffs, and the indebtedness which plaintiffs claim to recover is alleged to be for moneys of O’Neil’s estate, secured by him and applied to his own use. On the part of the devisees it is insisted, that a joint action cannot be brought *608under the statute against both heirs and devisees, because the statute provides, in substance, that no recovery shall' be had against devisees until the creditor shall have exhausted .his remedy against the heirs. (2 R. S. [Edm. ed.], 474, § 52.) In 'the view the learned referee has taken of this question, it is of no importance in the case. He has held, in substance, that all the defendants are devisees, and so are properly joined by the express requirements of the statute. He regards the posthumous child not as heir at law, and taking in that capacity, but as a *“*statutory devisee,” and entitled therefore, in respect of her equal undivided one-eighth of the real estate of which her father died seized, to stand on the same footing as her several brothers and sisters, named in said will as devisbes. Whether*this view can be maintained, will be hereafter considered. But regarding Florence as an heir at law, we see no objection in uniting the devisees with her in the action, under the averments of the complaint. It is distinctly averred that the interest in the real estate which has descended to her, is not sufficient to pay the indebtedness to plaintiff; and this is found as a fact by the referee. If, therefore, she is to be treated simply as an heir at law, there is little difficulty in so framing the judgment as to direct that the estate which Florence has taken as heir at law, be first exhausted, and then apportioning the residue upon lands severally devised to the devisees. In this mode the statute can be executed without the necessity of several actions. This course was approved by the chancellor in Schermerhorn, *Exec.,*v. *Barhydt*(9 Paige, 28), and seems to be consistent with the language of the statute. (2 R. S., 455, § 56; and see, also, *Butts*v. *Genung,*6 Paige, 254.) The chancellor does not, as' it seems to us, express any views, in *Wambaugh v. Gates*(11 Paige, 505) which áre in conflict with *Schermerhorn*v. *Barhydt.*

On the behalf of all the appellants, it is urged that the plaintiffs had not, at the time of commencing this action, exhausted their remedy against the personal assets of Isaac Geery. The plaintiffs had sued the executors of Isaac Geery, and recovered a judgment upon which nothing had been realized. An accounting had been had before the surrogate, in which this judgment was set down and recognized as an indébtedness of the estate. The accounting showed that nothing remained in the hands of the *609executors, out of which the judgment or any portion could be paid. It appeared on this accounting, however, that a large disputed claim of the testator against the firm of J. *&*W. Geery,' nominally sufficient to pay all the debts of the testator, was remaining in the hands of the executors. ¡Nothing had been collected upon it, and the surviving partner disputed and litigated his liability. Three years had elapsed before this action was brought, after the granting of letters testamentary; and at that time nothing remained in the hands of the executors with which the indebtedness to plaintiffs, or any part thereof, could be paid. We think the requirements of the statute were substantially complied with, and that the fact that a disputed and litigated claim remained undecided, was not in itself sufficient to prevent the plaintiffs from proceeding against the heir and devisees.

It appears in the case, and is found by the referee, that while this action has heen pending, a judgment has been recovered by the executors of Isaac Geery against his surviving partner, establishing the liability of the latter, and directing an accounting, and appointing a receiver of the property of the late firm; and that a considerable amount of real estate has been sold under such judgment, which has been bought in by the executors of Isaac Geery, and is in their hands as assets.

These facts, we think, are no defense to this action. The rights of the parties must be determined by the state of facts existing at the commencement of the action; and if the condition of things was at that time such that the right to sue under the statute had arisen, a subsequent change in the assets will not defeat the proceeding. But the court has complete control of the case; and upon its being shown that the representatives of the estate have received assets that ought to be applied to the payment of indebtedness, the court can make such orders touching the execution of its judgment as will enable the defendants to be relieved wholly or in part by the application of such assets. This accords, we think, with the principles laid down by the chancellor in *Graham*v. *Dickinson*(3 Barb. Ch., 169) and the cases therein cited.

The rights of the heir and devisees, if the judgment in this case be collected of them, would be protected upon the principle of subrogation, if, after such suit, assets came to the hands of the execu*610tors. And if such assets come before the collection of the judgment, there is nó reason why the court should not interfere for their protection, by making such directions as may, upon the facts shown on the application, be shown to be just and equitable. It is quite another thing, however, to arrest or defeat the recovery on such a ground.

The proof of the indebtedness of the estate to plaintiffs was sufficient. The plaintiffs put in evidence the judgment recovered by them against the executors of Isaac Geery. This, perhaps, was not evidence of the indebtedness as against these defendants; but it was competent as tending to show what steps had been taken to reach the assets of the estate, and as bearing on the question whether efforts to collect from the personal estate of the decedent had been exhausted. This evidence was supplemented by proof of the account kept by Isaac Geery himself, which showed certain moneys received and an amount expended by him ; and it is upon this proof of indebtedness that the referee has proceeded in rendering his judgment.

The recovery against the executors was for a less amount than the recovery against these defendants. We think the referee should have limited the recovery to the same sum and interest and the costs of the judgment, because that judgment fixed the amount for which the assets of the estate in the hands of the representatives were liable, and as to which there could be a deficiency of assets. It was competent, we think, for the defendant to use the record in the case to establish that the claim of plaintiffs which could be enforced against them was not greater than that recovery. It is apparent that the indebtedness proved by the account and that recovered in the judgment were identical. We must assume that the sum was reduced by some credit or defense to the amount of the judgment. After the recovery of the judgment all the claims became merged in it, and the judgment was the conclusive evidence, as between plaintiffs and the executors, of the extent of the indebtedness. ¡No greater amount could be collected out of the personal assets; and if that amount had been collected out of personal assets, no action could have been maintained against these defendants for the difference between the judgment and the account for which it was recovered. As to such balance it would be impossible *611to show that the personal assets had been exhausted, because, for that difference no remedy could have been had by plaintiffs against such assets. The referee should therefore have taken the recovery in the judgment as conclusive of the amount of the indebtedness, when it was shown *dehors*the record, that it was recovered for an actual indebtedness, identical in its character with that alleged in this action. A reduction must be made in the judgment accordingly.

The referee rightly disposed of the question made as to the widow’s right of dower. It is presumed, after this lapse of time, that she elected the provisions of the will, and had no right of dower; besides, the right is not an estate vested in her until admeasurement, and may never become an estate in any portion of the lands. The defendants who wished to avail themselves of it should have shown more than now appears, in order to make the point of any effect.

This brings us to the question whether Florence Geery takes her estate as heir at law within the meaning of the statute which forbids proceedings against devisees unless the estate descended to heirs shall have been first exhausted. The statute provides that, *“*whenever a testator shall have a child born after the making of his will, either in his lifetime or after his death, and shall die leaving such child so after-born unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of the father’s real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the parts devised and bequeathed to them by such will.” (2 R. S., 65, § 49.) Florence Geery comes within the provisions of this section, and, *as to*her, Isaac Geery, her father, died intestate. Another section of the Revised Statutes provides that, “ in cases where, by the provisions of any statute, a child born after the making of the will shall be entitled to succeed to a portion of the testator’s real and personal estate, such child * * * shall, in all respects, be liable in the same manner and to the same extent to the creditors of his ancestor in respect to the personal property delivered to him and the real estate descended to *612him, as are herein prescribed in relation to next of kin and heirs.” A keen sense of the hardship which the application of these statutes according to their strict letter would work upon the infant, Florence G-eery, has led the referee to treat her as standing on the same footing toward her brothers and sisters, in respect of the payment of the debts of their father, as though he had died wholly intestate. It is very difficult for me to see upon what grounds this construction of the several statutes can securely stand, but my brethren are of opinion (as more fully expressed in the opinion of Beady, J.), that the spirit of the statute permits and requires a construction that will subject all the real estate of the decedent to bear equally the burden of his debts, and thus prevent the gross injustice of taking from Florence her entire inheritance. They are in favor, therefore, of affirming the views of the referee on this point; and I am quite content that such views should prevail. The true basis of apportionment in such a case is¿ we think, the value of the respective parcels at the time of the death of the testator. Any other rule is too uncertain, and subject to too many fluctuations which may work injustice among the devisees or heirs, to be safely adopted. The “ extent of the estate ” which the heir or devisee receives by will or by inheritance, is the value at the time the same vests by the devise, or by operation of law. The judgment must therefore be reversed and the proceedings remanded to the referee, with instructions to proceed in conformity with the views herein expressed.

Daniels, J., concurred.

Brady, J.:

The design of the statutes in reference to posthumous children, was to give them the same portion precisely as they would have if the parent had died intestate, and hence the provision that descendants and relatives of the intestate begotten before his death but born thereafter shall in all cases inherit in the same manner as if they had been born in the lifetime of the intestate and had survived him. (3 R S. [5th ed.], 43, § 18.) And hence the fur-, ther provision, that whenever a testator shall have a child born after the making of his will, either in his lifetime or after his death, *613and shall die leaving such child so after-born unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of the father’s real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the part devised and bequeathed to them by such will. (3 R. S. [5th ed.], pp. 145, 146, § 44.) When the children are the devisees, the object of the statute can only be accomplished by requiring each to contribute in proportion to his devise to make up such share of the property as would have gone to the after-born in case of intestacy, and subjecting each devisee to the same burdens as the after-born, in proportion to the estate held.

To carve out of the devised estate a portion for the heirs at law, and to subject it to the grasp of the creditors, would defeat the benign intent of the legislature, and destroy that *quasi*equality which it was obviously designed to accomplish.' When, therefore, the children are the devisees, they become, under its operation, heirs at law to the extent of their devise, so far as the after-born child is concerned, and, as to him, must bear the burdens of their estate. The statutory object in view, makes it wholly immaterial whether the posthumous child is called heir or devisee, and equally immaterial whether the devisees are regarded as such *eo nomine*or heirs at law.

The legislature appropriates asan act of justice, and in presumed accord with what would have been done by the testator, such parts of their devise, consistent with the whole estate, as may be necessary to give the after-born an equal share of the whole of the testator’s property, subject to distribution and division; and it operates as a repeal, by implication, of all conflicting statutes.

It was not intended that any one child should bear a heavier burden than another, except so far as there might be an inequality in the value of the devise, and then it would result from the will of the testator, and not so much from legislative intent.

This view is in perfect harmony with the spirit of the statute, and what is within the spirit is within the letter, and is the true •exposition of its meaning and design. I think the children should *614contribute ratably to the payment of the plaintiffs’ *claim;*and that this action should, in its result, attain such object, all parties being present in court.

Judgment reversed and case remanded to referee.