#### Cassius H. Read, Resp’t, *v.*Elizabeth Patterson *et al.,*Impl’d, App’lts.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

Heirs, legatees, etc.—Proof necessary to support action against.

In an action brought under the statute against the heirs to collect a debt due from their ancestor the burden is on the plaintiff to establish the extent and value of the personal property at the time when it passed to the executors and the debts then due. Proof of a sale of such property made 0 years subsequently to that time and the amount realized thereon is not sufficient to overcome the presumption of its value arising from the executor’s account.

(Van Brunt, P. J., dissents.)

Appeal from a judgment of the special term.

*George Putnam Smith,*for resp’t; *Preston*Stevenson, for app’lts.

Brady, J.

The plaintiff failed to show 'on the first trial of the issues herein that the deceased, John H. McCuun, did not leave an amount of personal assets sufficient to pay his debts, and Justice Daniels, who expressed the views of the court sitting at general term, said it might be on another trial that such explanations would be given by way of evidence as would prove the fact to be that the personal assets were not sufficient to pay the debts and thus establish the right of the plaintiff to recover. The record on the second appeal, the defendants again "being the appellants, is voluminous and without an index, which has rendered its examination more laborious: The appellants, brief is also elaborate, their counsel discussing again a question of the statute of limitations which was decided against him on the former appeal and in the hope of a reconsideration of it by this court. Indeed all the objections, he concedes, were decided against his views save the first, namely, that the complaint and proofs fail to show the statutory prerequisites for a recovery against heirs at law for the debts of a decedent, but, on the other hand, show affirmatively that there can be no proof made of what the statute demands to sustain such an effort. The proceedings to charge the heirs Under the provisions of the revised statutes bearing upon the subject and which govern herein are complex in their application and requirements and the burdens in the pres*103ent state of their exposition, force and meaning which are cast upon the creditor, make it very difficult, if not impossible to comply with their demands.

The record here is replete in detail, and yet considered abstractly with reference to these demands it would seem to be deficient in many respects. The two factors which present themselves at once and most formidably are the amount of the debts due by the decedent, and the value of the personal assets left for their payment. How is either of these controlling facts to be established, inferentially or absolutely, presumptively or by proof positive ? This meets us at the very threshold of the subject, and awakens obstacles and difficulties. The proceeding itself is one for which the common law made no formula, and the statute therefore as interpreted must be strictly followed. Starting with this rule in view there would seem to be little doubt that upon the plaintiff lies the duty of proying all the debts for which the decedent was responsible, and which in many cases must be a herculean task, overwhelming by its attendant expense and labor the whole claim involved, and as well to prove the whole of the personal estate and its value. The inventories bind neither plaintiff nor defendant, and the heirs are therefore surrounded by a wall which can be pierced only by details managed by a master hand. These observations which might well be extended, for the subject is prolific, are indulged in only to suggest a condition of legal ex-actions, which yield the amplest protection to the heir, but a minimum to the creditor. The true rule would be to intrench the creditor behind the inventory of personal estate made as required by law, and the reported debts of the decedent, made by his administrator or executor, with the right to assail either or both for his greater advantage and success; and to impose upon the heirs the duty of showing their incorrectness. The heirs are the recipients of the testator’s property, which goes to them with the contingent burden of their testator’s debts, and the property which is thus incumbered they should protect by diligently watching the appropriation of the personal estate. If these conditions existed, the heir would exercise the power of securing his estate, and his efforts would be beneficial alike to the creditors and himself. In this case, for example, taking the amount of personal estate as it existed when Gano, the acting executor, passed his accounts before Surrogate Rollins, and its value, as set forth, there was a very decided excess of personal property over the debts reported, assuming the whole amount of them, admitted and doubtful, not passed upon or disputed, to be correct.

The personal property and its increase according to the findings of the learned justice whose judgment we are asked to review has in the value of the leaseholds fallen off $47,150, and this perhaps jeopardized the inheritance of the heirs, a falling off evidently the result as charged of careless maladministration or negligence of the executors. If the heirs had given proper attention to their interests this result would no doubt have been prevented, and this litigation averted by the payment of the testator’s just debts. When the former appeal was before us the personal es*104tate appeared to be more than sufficient in value to pay the debts alleged, assuming them all to be justly due, which could not in fact be held to be correct, and these figures are still to prevail on the principles and rules then declared to be controlling of the rights of the parties to this controversy, for it was then said that the amount and value of the personal estate related back to the time it was received by the executor. This rule is just, inasmuch as it calls for diligence in the sale or appropriation of such property with a view to the payment of debts and to prevent waste, a calamity which seems to have overwhelmed the leasehold which was sold years afterwards for the sum $6,850, and by which there was an erroneous decrease apparently in its value, put down as we have seen at the sum of $93,465.45 in the executor’s Grano’s account and increased by further appraisement to $123,439.12.

The amount of this sale is the chief item by which the heirs are sought to be made responsible for the testator’s debts, and its existence as a fact occurred as suggested years after the executors received the personal property. Who should bear the burden of the deficit thus caused ? The creditor cannot pursue the heirs under the Revised Statutes until the deficiency of assets has been developed and under the provisions of the Code until three years have elapsed since the granting of letters testamentary, § 1844, but the heirs could have protected themselves by diligent attention to their interests against the creditors whose claims might affect their inheritance. And again, the creditors might by proper diligence have urged and enforced payment of their debts by proper and prompt proceedings in the surrogate’s court which they seem to have overlooked or disregarded and hence the equities would seem to be nearly balanced.

However this may be applying the rule stated in the former appeal, the evidence now submitted has not changed the result. The sale of the leasehold years after the executors received the personal property in which it was included, cannot have the force necessary to overcome the asserted value of the leasehold property of which the account under § 1848 of the Code furnishes presumptive evidence. It is only proof of the value at the time of the sale, not of the value at the time the executors received it The plaintiff has, therefore, failed to prove the necessary facts to justify the findings made herein, and the judgment must therefore be reversed. He is the moving party. He asserts a condition of the estate of the testator both as to indebtedness and extent of personal property existing at the time the estate passed into the possession of the executors, factors, the presence of which were necessary as he was duly advised when the former appeal was decided. He has not made them apparent in such relation as to entitle himself to the relief asked against the heirs. He has not, in other words, shown the extent and value of the personal estate at the time when it passed to the executors, and •the debts then due. He placed his right to recover chiefly upon the amount of the sale of the leasehold which was made years subsequently, and the result of that sale, as suggested, *105cannot be employed for his benefit. It may be said, in conclusion, that the record differs only in unimportant particulars, so far as the plaintiff’s rights are sought to be sustained, from the previous one in which the questions involved were duly considered and disposed of (see opinion, Daniels, J., printed in the record).

For these reasons the judgment must be reversed and a new trial granted, with costs to the appellants to abide the event.

Daniels, J., concurs; Van Brunt, P. J., dissents.