Appellant took title tp the premises in question upon the death of Almeron W. Crain under his will, subject, however, to any equitable lien thereon which 'might arise in favor of the creditors of the deceased.
A recovery of a decree or judgment against the - personal representatives, as such, created no lien upon the said real estate. (In the Matter of the Estate of James, 4 Redf., 236; Lynch v. Patchen, 3 Dem., 58.) The judgment against the personal representatives of the deceased was not obligatory upon the heirs-at-law, the widow or devisees of the testator. (Sharpe v. Freeman, 45 N. Y., 802.) Such a judgment is not sufficient to render the plaintiff a judgment creditor of the widow or heirs-at-law. (Id.)
*186The judgment or order which is authorized by section 2553 of the' Code of Civil Procedure, is not a lien upon the real estate of the decedent. Such a judgment or decree may be enforced by an execution against the property of the party directed to make the payment. (Code of Civ. Pro., § 2554.) The defendant here was not such a party.
Whenever the surrogate goes beyond his statutory power, he exceeds his jurisdiction and his acts are not effectual in such case. (Code of Civ. Pro., § 2472.) His power over real estate of a testator or intestate, in respect to its sale, depends upon the statute, which authorizes proceedings to sell or mortgage, to enforce payment of debts in case there be not personal property applicable therefor. No such decree, as the statute referred to authorizes, was held by the respondent, who recovered a decree declaring her claim valid against the estate of A. W. Crain, deceased, “ and that the executors shall pay the same out of the assets of the estate of Almeron W. Crain, now in their hands.” That decree did not authorize the sheriff to sell the real estate of the appellant, and the sale under that decree did not divest the appellant of her title to or interest in the real estate devised to her by her husband. The respondent failed to make- a case entitling her to the possession of the premises described in the proceedings had before the county judge of Cortland county.
The learned county judge, in his opinion, refers to the People v. McAdam (84 N. Y., 294), and opinion of Folger, Ch. J., for his conclusion that the proceedings may be maintained. That case differs from this one. There the property, which fell to the hands of the executors was leasehold estate, and, therefore, passed to the executors as personal property as assets and for distribution. The learned chief judge so declared, and referred to his opinion in Despard v. Churchill (53 N. Y., 199), in which latter opinion he says of such property that “at common law it is personal property.” The statutes of this State have for some purposes modified its character; estates for years are denominated estates in lands. (1 R. S., 722, § 1, etc.) They are still chattels real (Id., 722, § 5), and are not classed as real estate in the chapter of “ title to property by descent.” A judgment binds and is a charge upon them as assets for distribution. (2 id., 82, § 6; see Pugsley v. Aikin, 11 *187N. Y., 499.) “ They vested iu the executors as a part of testator’s personal estate.” The case of People v. McAdam (supra) is, therefore, unlike the one before us.
Our attention is called to Haight v. Brisbin (100 N. Y., 223), where it is said an executor who has failed to sell personal property, and a loss has happened without adequate excuse, the executor may be charged, and that in a proper case a similar remedy may be had in case of failure to sell real estate, but that does not aid the respondent here.
If an executor has been dilatory in the sale of real estate he may be liable. That furnishes no power to or reason why the surrogate may make a decree against him or in proceedings against him which will bind the devisee of real estate or an heir-at-law, without a day in court.
Second. The judgment recovered against a surviving partner of Crain & Go. did not give any lien upon the individual property of the deceased member of the firm, under which the property of the individual member of the firm had passed to the appellant by will of the deceased member of the firm. The appellant was not a party to that action, nor were her lands bound by the lien of that judgment. It may be conceded that a creditor may compel an executor,- with power of sale, to sell real estate for the payment of debts. (Code of Civ. Pro., § 2804.) However, before a decree to that effect may be made, a citation must be issued to the persons whose rights in the estate or fund might be affected by such a decree. (Code of Civ. Pro., § 2806.) No such citation was issued to the appellant and her estate in the lands in question has not been cut off by a proper decree or judgment, or the title thereto transferred to the plaintiff.
By section 2749 of the Code of Civil Procedure authority is given to direct the disposition of real estate for the payment of debts and funeral expenses of the decedent, but all devisees and lieirs-at-law of such real estate must have citations. (Sec. 2754.) And they may appear and contest before the surrogate, upon the return of the proper citation. (Sec. 2755.) In such a proceeding though a judgment has been “rendered against an executor or administrator for a debt due from the decedent, the debt is nevertheless deemed a debt of the decedent to the same extent and to be *188established in the same manner ” as other debts, though the judgment is presumptive evidence. (Code, § 2756.)
The provisions of law already referred to, and others as to details of sale of real estate of deceased parties to pay debts are to the effect and for the purpose of working out a pro rata distribution among creditors of the proceeds of real estate arising by reason of the same being mortgaged or sold to pay the debts of the deceased. (In the Matter of the Estate of Fox, 92 N. Y., 96.)
We are of the opinion that the order of the county judge of Cortland county should be reversed.
Boardhan and Follett, JJ., concurred.Order and judgment of the county judge of Cortland county reversed, with costs.