I am of opinion that the order of the surrogate was erroneous. An executor or administrator cannot be compelled to render a general account of his administration, nor can he do so at his own instance, until after the expiration of eighteen months from the time of the taking out of letters. (3 R.S., 178, 182, §§ 57, 77.) But by another provision of the statute a creditor without judgment may apply to the surrogate for an order for the payment of his debt, or any portion of it, after six months from the time of granting the letters; and by still another section a creditor who has obtained a judgment against the executor or administrator, after a trial on the merits, may apply for an order to show cause why an execution should not be issued. The surrogate in such a case is to issue a citation requiring the executor, c., to appear and account before him, and if it shall appear "upon such accounting" that there are sufficient assets in the hands of such executor or administrator, properly applicable under the provisions of this chapter "to the payment in whole or in part of the judgment so obtained, the surrogate shall make an order that execution be issued for the amount so applicable." (3 R.S., 204, §§ 18, 20, 21, 22.) The statute appears to contemplate that an estate may be so circumstances that a particular debt might be properly paid, or a judgment satisfied, before the arrival of the period for final accounting, and without such final accounting being had; and such cases, doubtless, often occur. Where a creditor has obtained such a judgment a provisional accounting is to be had, so far as to ascertain that the executor has the means of paying the particular debt or a part of it, without prejudice to himself or any other creditor. If the affidavit of the respondent could be considered an accounting, it would appear that he had in his hands realized assets to less than thirty per cent of the debts. If the funds received for real estate sold should be included, the amount would not pay a *Page 364 dividend equal to one-half of the debt. But the sale of the real estate having taken place under an order of the Supreme Court, the executor was not obliged to account to the surrogate for these moneys. The judgment was not entitled to any priority in payment over the other debts of the testator, but in case of a deficiency was entitled to a pro rata share. It is only judgments and decrees rendered against the deceased in his lifetime that have a preference over simple contract debts. If this judgment, therefore, should be paid in full, the judgment creditors would obtain an unlawful preference over the other creditors, unless further assets, sufficient to pay all the debts, should afterwards come into the hands of the executor. The amount of the whole inventory, according to the affidavit, is much less than the aggregate of the debts, and a considerable portion of the property was held under a lease for lives executed by the testator.
But I am of opinion that the order was erroneous, because an account was not ordered or taken. The statute requires that the citation should be for the executor to appear and account. The citation actually issued did not allude to an accounting, but required the executors to show cause why execution should not issue, as though there was a judgment in the surrogate's court. As the executors appeared, the citation would be disregarded if the subsequent proceedings had conformed to the statute. Again, there must be an accounting before an order for execution, and then it can be issued only for the amount of assets applicable to the payment. The affidavit cannot be considered an account. Its purpose was to show that an account at that time was unnecessary. I do not say that it was sufficient for that purpose; but if the surrogate determined it was not he should have ordered an account to be presented, which should have been examined by the surrogate and settled so far as to show that there were assets sufficient to pay the debts.
It is urged by the counsel of the appellants that an appeal to the Supreme Court was never perfected, because a proper bond was not given by the present respondent when he undertook to appeal to that court. One of the sections *Page 365 already referred to declares that every order made under the preceding section shall be conclusive evidence that there are sufficient assets in the hands of the executor, c., to satisfy the amount for which the execution is directed to be levied, and that no appeal shall be made from any such order unless the appellant will execute a bond with sureties to pay the amount directed to be levied if the order shall be affirmed. (§ 22.) The bond copied in the return in this case is the one required by 3 R.S., § 26 (2 R.S., 1st ed., 610, § 108), which is applicable to appeals from all orders of a surrogate except certain ones which are specified. I am of opinion that as the order appealed from cannot be said to have been made under the provisions authorizing an award of execution upon a citation to account, and upon an accounting had pursuant to such citation, the bond required in such cases need not have been given. As the order was wholly unauthorized by the statute, it has not the effect which the statute attributes to such orders, and may be reviewed on giving the security required on appealing from orders in respect to which the several provisions applied. In Davies v. Skidmore (5 Hill, 501), it was held that a bond like the one given in this case was sufficient where the judgment upon which the surrogate had awarded executions was rendered by default, instead of a trial on the merits. It was thought that under 2 R.S., 1st ed., 88, § 32, a surrogate might direct executions to issue on any judgment. I am not clear that this was correct, but am inclined to the opinion that the exception in that section has reference to the more detailed provisions which I have cited from a later title of this chapter. However this may be, the case is an authority to show that the special bond is not required unless the order was made under these provisions, which was not the case as to the order appealed from.
I am for affirming the judgment of the Supreme Court.
PORTER and CAMPBELL, JJ., concurring,
Judgment reversed. *Page 366