This action was brought to recover from the heirs of John H. McCunn debts due from him to the plaintiff, on the grounds: (1) That the personal assets of the decedent were not sufficient to pay and discharge the same. (2) That the plaintiff had been and would be unable with due diligence to collect his claims by proceedings in the Surrogate's Court, or by action against the executors, legatees and next of kin. The action was defended on the grounds: (1) That the facts prescribed by the statute as conditions precedent to a right to recover the debts of the ancestor from his heirs were not established. (2) That the claims sought to be recovered were not the debts of the decedent. (3) That the action was barred by the six years' statute of limitations.
The plaintiff urges that section 1848 of the Code of Civil Procedure is applicable to this case, and that a recovery can be sustained under its provisions, while the defendants insist that the provisions of the Revised Statutes authorizing the collection of debts of an ancestor from his heirs are alone *Page 134 applicable, and that the right of recovery must be determined by those statutes.
The following are the sections of the Revised Statutes and Code which relate to this subject:
"§ 33. But such heirs shall not be liable for any such debts, unless it shall appear either that the deceased left no personal assets within this state to be administered, or that the personal assets of the deceased were not sufficient to pay and discharge the same; or that after the proceedings before the proper Surrogate's Court and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatees."
(As amended by chapter 110, Laws of 1859.)
"§ 1848. Where the action is brought against heirs, the plaintiff must show, either
"1. That the decedent's assets, if any, within the state were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class; or
"2. That the plaintiff has been unable or will be unable, with due diligence to collect his debt, by proceedings in the *Page 135 proper Surrogate's Court, and by action against the executor or administrator, and against the surviving husband or wife, legatees, and next of kin.
"The executor's or administrator's account, as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts, required to be shown by this section."
The trial court found: "52. That the assets of said John H. McCunn, deceased, within this state, were not sufficient to pay the aforesaid debts of the plaintiff, Cassius H. Read, in addition to the expenses of administration and debts of a prior class or without such addition, and that the said plaintiff was unable at the commencement of this action, and will be unable with due diligence, to collect his debts by proceedings in the Surrogate's Court of the county of New York, and by actions against the said executors and executrix, and against the surviving wife of said John H. McCunn, and legatees and next of kin."
By this finding it is evident that the trial court proceeded upon the theory that the provisions of the Code were applicable to the case.
The right of the creditors of a decedent to recover their claims from his heirs at law had no existence at common law, and is derived wholly from the statute. John H. McCunn died, his will was probated and parts of it were adjudged to be void before section 1848 of the Code of Civil Procedure, above quoted, went into effect, but this action was brought after that article took effect. By section 32 of the Revised Statutes, the heirs of the decedent are not liable for their ancestor's debts unless it shall appear: (1) That the deceased left no personal assets within this state to be administered; or (2) that the personal assets of the deceased were not sufficient to pay and discharge the same; or (3) that after the proceedings before the proper Surrogate's Court and at law, the creditor has been unable to collect such debt, or some part thereof from the personal representatives of the deceased, or *Page 136 from his next of kin or legatees. These were statutory conditions precedent to the right of recovery on the part of the creditors, and prescribed the circumstances which must exist to render the heirs liable.
The legislature has the power to prescribe the course of descent of real property, and to impose upon those who accept of it, liabilities to others, like the payment of taxes to the sovereign, and of the debts of the decedent to his creditors. But the rights of the heir vest upon the death of the ancestor, subject to the conditions, limitations and liabilities then imposed by existing statutes, which cannot be enlarged by subsequent legislation.
It is apparent, we think, that the legislature, by enlarging the rights of creditors and limiting those of heirs by the adoption of section 1848 of the Code, did not intend to make the new liability retroactive and applicable to descents which had theretofore occurred, but only to such as should thereafter occur.
Section 3352 of the Code provides: "Nothing contained in any provision of this act, other than in chapter fourth (which relates to `limitation of actions'), renders ineffectual or otherwise impairs * * * any right, defense or limitation lawfully accrued or established before the provision in question takes effect, unless the contrary is expressly declared in the provision in question."
There is no declaration in the Code that article 2 of title 3 of chapter 15 was intended to apply to the rights of creditors of decedents against heirs, or to the defenses of heirs, in cases arising before the adoption of the Code. The absence of such a declaration seems to settle the question that the case at bar is governed by the provisions of the Revised Statutes, and not by those of the Code.
It is quite apparent that section 1848 of the Code, above quoted, enlarges the rights of creditors and the liability of the heirs of decedents by permitting recoveries from the heirs when it appears that the creditors will be unable with due diligence to collect their debts by proceedings in the proper *Page 137 Surrogate's Court, and by action against the executor, or administrator, or wife, legatees or next of kin. This limitation upon the rights of the heirs not being a part of the statute at the time of descent cast, it cannot now be imposed as an additional burden upon the rights which they had previously acquired. The facts found in the fifty-second finding are sufficient, if supported by the evidence, to sustain a recovery under the Code, had it been in force at the death of McCunn; but it not having been, no effect can be given to the part of it which finds that the plaintiff will be unable with due diligence to collect, etc.
Sections 32 and 33 of the Revised Statutes above quoted do not prescribe a rule of procedure for enforcing the liability of heirs, but prescribe the conditions upon which recoveries may be had from heirs, and lay down a substantive rule of law. This judgment must be supported, if at all, under the second alternative subdivision contained in section 33 of the Revised Statutes — that the personal assets of the deceased were not sufficient to pay and discharge the debts due the plaintiff. The court found that the debts of the estate amounted to $94,768.97, and that the assets applicable to the payment of the debts of the plaintiff's class was $32,887.29. One hundred and one claims, amounting to $70,971.73, were listed by James M. Gano, one of the executors, upon the paper known in this litigation as Schedule H, which was made up by him and entitled, "Claims presented, not passed upon or disputed, or claims correct, but unpaid." This executor was called by the plaintiff as a witness, and he testified that the schedule included all claims brought to his knowledge, and that the validity of some of them were disputed by him. Among other claims in the schedule was one presented by Doolittle, Davis Lyon for $14,000, which he testified that he rejected for good cause, and that the claim was never verified, nor were any proceedings taken to collect it. Another claim presented by James S. Morgan for $18,394.19, the executor testified, was excessive at least, that it had never been verified, nor had any proceedings been taken to collect it. These two claims, *Page 138 amounting to $32,394.19, were not only not established by any evidence, but were actually discredited by the only witness called to establish them. Aside from the claims in suit, and one or two others contained in Schedule H, no evidence was given to support the validity of any of them, nor does it appear that they were verified as required by the statute. (2 R.S. 88, § 35.)
The court found, in effect, that if the plaintiff had exercised due diligence and compelled the application of the assets, $32,887.29, toward the payment of the debts, $94,768.97, that .347 of the debts would have been paid, and so gave the plaintiff a judgment for but .653 per cent of their claims against the defendant. As above shown, the two claims, amounting to $32,394.19, were not established as debts against the estate, which deducted from $94,768.97 leaves $62,374.78 of debts established against the estate. The assets, $32,887.29, applicable to the payment of these debts, would have paid .5275 per cent of plaintiff's claim. The total amount of plaintiff's claims, as established by the Special Term, amounted to $13,504.34, .5275 per cent of which amounts to $7,123.54, which deducted from $13,504.34 leaves $6,380.80 recoverable against the defendants, instead of $8,818.33.
It is urged in behalf of the plaintiff that Exhibit H became presumptive evidence of the existence of the debts enumerated therein by virtue of the last paragraph of section 1848 of the Code of Civil Procedure, above quoted. Assuming that this provision is but a rule of evidence and applicable to this case, it does not aid the plaintiff, for Exhibit H was no part of the executor's account, but is a mere list of claims which had come to his knowledge. True, it was annexed to the account which he filed with the surrogate, but the validity of these claims was not passed on in any way by the Surrogate's Court, and the list is not presumptive evidence that the claims enumerated therein are the debts of the decedent. Undoubtedly the executor's account of moneys received and disbursed as allowed by the surrogate is presumptive evidence of the amounts received and paid in actions against the heirs, but the provision was not *Page 139 intended to make mere statements, not properly before the Surrogate's Court for adjudication, evidence in such actions. It is not asserted, in behalf of the plaintiff, that the heirs are liable because it appears that the deceased left no personal assets within this state, for the contrary is conceded. Nor is it claimed that proceedings have been taken before the proper Surrogate's Court and at law for the collection of the debts sought to be recovered in this action, and so there is no ground left upon which this recovery can be sustained, except under the second alternative subdivision of section 33, and we have shown, we think, that the evidence is insufficient to sustain the finding under that section.
We think it was well held at Special and at the General Terms that the plaintiff's claims were established as debts contracted by John H. McCunn, and that the Statute of Limitations had not applied as a bar.
The order of the General Term should be affirmed, and judgment absolute rendered against the appellant, with costs.
VANN, HAIGHT and BROWN, JJ., concur with BRADLEY, J. All concur with FOLLETT, Ch. J., on the second ground discussed by him, except POTTER, J., not voting, and PARKER, J., not sitting.
Judgment affirmed.