[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 304 It appears from the opinion of the judge who presided at the Special Term that he gave judgment against the plaintiff for the reason that he had not obtained leave to sue under section 1628 of the Code. At the General Term, as appears from the opinion there pronounced, the judgment was affirmed because no execution had been issued upon plaintiff's judgment.
We think this action is without precedent, and that the judgment should be affirmed, but not for the precise reasons stated in the courts below. *Page 306
Plaintiff's judgment, obtained subsequently to the death of the testator, in an action against his executors in their representative capacity, did not become a lien upon any real estate left by him, and no execution could be issued thereon against any real estate. It was provided in the Revised Statutes (2 R.S. 449, § 12) that "the real estate which belonged to any deceased person shall not be bound or in any way affected by any judgment against his executors or administrators, nor shall it be liable to be sold by virtue of any execution issued upon such judgment;" and subsequently the same provisions were incorporated in the Code. (§ 1823.) Executions authorized by 2 Revised Statutes 88, section 32, and by the Code, sections 1825 and 1826, are such only as can be issued against personal assets which are in the possession or under the control of the executors or administrators, and have no relation whatever to real estate.
The conveyances, therefore, which the plaintiff seeks to set aside are no obstruction to any lien he may have or to the enforcement of any execution which he may be able to issue. If the conveyances should be set aside, he would not be able to sell the real estate by virtue of his judgment or any execution issued thereon, and hence this is a case where he is not entitled to the equitable relief which he seeks. (Spring v. Short, 90 N.Y. 538. ) If the plaintiff could obtain the judgment which he seeks, it would result that, without having any lien upon the real estate, he would obtain satisfaction of his claim in preference to the other creditors of the testator. The law gives no preference to a vigilant creditor in the estate of a decedent. It impounds his estate for the benefit of his creditors, and no creditor can, by any procedure or any degree of vigilance, obtain any preference over others. This scheme of the law would be violated if such an action as this could succeed.
The lands, although conveyed by the testator in his life-time, were assets which could be appropriated for the payment of his debts. (Chap 314, Laws of 1858.) If the facts stated in the complaint are true, it is the duty of the executors to pursue the real estate and reclaim it for the benefit of the persons *Page 307 interested in the estate of the testator, and no one creditor can appropriate it for his sole benefit. (Southard v. Benner,72 N.Y. 424; Spring v. Short, supra; Crouse v. Frothingham, 97 id. 105.)
The fact that the fraudulent grantee is one of the executors furnishes no insurmountable obstacle. If she should refuse to restore the lands to the estate, she could be removed from her office of executrix, and then the remaining two executors could, under the act of 1858, disaffirm the conveyances of the real estate and bring an action to set them aside. Or the two executors could commence the action making the executrix a defendant, and in such an action obtain for the estate the relief demanded. If the two defendants refused to commence the action upon the application of the creditors or some of them, they could be compelled to commence it by an order of the surrogate who has ample power to that end under section 2481 of the Code. Here it does not appear that any application was made to the surrogate, or to the two executors, and there is no reason whatever for not pursuing the orderly method pointed out by the statute for reclamation of this real estate and its sale for the payment of the debts of the testator.
We are, therefore, of opinion that there is no basis for the maintenance of this action and that the judgment should be affirmed, but without costs.
All concur, except MILLER, J., absent.
Judgment affirmed.