this section, against heirs and devisees, but the existence of a fiduciary or contractual relation does not necessarily alter the nature of the obligation. The terms "simple contract" and "specialty," employed in this section, comprehend every kind of contractual obligation; they embrace deficiencies on judgments of foreclosure.®o The statute appears to be broad enough to cover even liabilities of the deceased arising er delicto, if they would have supported the old count of assumpsit.1

Debts are, however, always primarily payable out of the personalty of a decedent, and it is only when his personalty is inadequate, that lands are by statute made equitable assets for the payment of debts as against heirs or devisees.62 Testators may, however, exonerate personalty from the payment of debts by charging them on lands, and in that event this section has no application.63

Remedy to Enforce the Liability under this Section. The creditors' remedy to enforce the liability arising under this section is by action. The time within which such action may be begun is dependent on circumstances. It has been said that it may

66

64

be begun at any time within ten years after the cause of action accrues.65 But if the action is on a note, it is subject to the six years bar. The action brought under this section is in the nature. of an equitable action, or a proceeding in rem, and not one for the recovery of money only, at least, when the heir or devisee

67

59 DeCrano v. Moore, 50 App. Div. 361; Adams v. Hillard, 14 N. Y. Supp. 120, 37 St. Rep. 314. Cf. Rogers v. Patterson, 79 Hun, 483.

60 Lockwood v. Fawcett, 17 Hun, 146; Hauselt v. Patterson, 124 N. Y. 349.

61 Wilkes v. Harper, 1 N. Y. 586, 594. Cf. Richards v. Gill, 138 App. Div. 75.

624 Kent Comm. 420; $ 2757, Code Civ. Pro.; Kingsland v. Murray, 133 N. Y. 170; Matter of Goetz, 71 App. Div. 272, 275; Fowler's Real Prop. Law (3d ed.), 471, 472; Redfield's Surrogate's Practice (7th ed.), § 673.

63 8 102, Decedent Estate Law; Turner v. Mather, 86 App. Div. 172. 648 1837, Code Civ. Pro.

65 Mead v. Jenkins, 27 Hun, 570; Mortimer v. Chambers, 63 id. 335; De Crano v. Moore, 50 App. Div. 361, 368; Richards v. Gill, 138 id. 750. Cf. § 1844, Code Civ. Pro.

66 Adams v. Fassett, 149 N. Y. 61. 67 Mortimer v. Chambers, 63 Hun, 335; Hentz v. Phillips, 23 Abb. N. C. 15; Armstrong v. McKelvey, 194 N. Y. 179; Hauselt v. Patterson, 124 id. 349.

08

has not aliened the land. After alienation the alienor is personally liable.69

During three years after a decedent's death his creditors have a sort of statutory lien on his real estate. After that time the statutory lien ceases, and a new lien may be acquired under this section and the Code of Civil Procedure.To Such creditors have meanwhile an insurable interest."1

The liability under this section is due to the statute, and it can be pursued only in the manner prescribed by the statute, and there must be proof that the deceased left no personal assets to be administered, out of which the debt could be paid.72 The property sought must have come to the defendant by descent or devise to fall within this section.73

74

If an heir or devisee has aliened the land he is personally liable, and if he is since dead his personal representatives are liable.75 The mere fact that title comes by a devise or by descent of land does not ordinarily create a personal liability in the taker to pay the debts charged on it. Under this section it is the real estate which becomes liable, and only to the extent of the interest of the heir or devisee." To make land in the hands of the devisee

76

68 Hauselt v. Patterson, 124 N. Y. 349.

69 1854, Code Civ. Pro.; Avery v. Avery, 52 Misc. 297.

70 Rogers v. Patterson, 79 Hun, 483, 485; Platt v. Platt, 105 N. Y. 488; Matter of Fielding, 30 Misc. 700.

71 Herkimer v. Rice, 27 N. Y. 163. 72 88 1844, 1849. Code Civ. Pro.; Selover v. Coe, 63 N. Y. 438; Stilwell v. Swarthout, 81 id. 109, 115; Platt v. Platt, 105 id. 488, 496; Rogers v. Patterson, 79 Hun, 483, 485; Waring v. Waring, 3 Abb. Pr. 246; Howell v. Randall, 36 Misc. 35.

73 Matteson v. Palser, 173 N. Y. 404; 1851, Code Civ. Pro.

748 1854, Code Civ. Pro.; Hauselt v. Patterson. 124 N. Y. 349; Haywood v. McDonald, 7 N. Y. Civ. Pro. Rep. 100.

75 Lawrence v. Grout, 112 App. Div. 245; Avery v. Avery, 52 Misc. 297; Trand v. Magues, 49 N. Y. Supr. 309; Hentz v. Phillips, 23 Abb. N. C. 115; Rogers v. Patterson, 79 Hun, 483.

76 Cleft v. Moses, 116 N. Y. 144, 154, 155; Haywood v. McDonald, 7 N. Y. Civ. Pro. Rep. 100, 102; Hill v. Moore, 131 App. Div. 365, 367. Cf. § 102, Decedent Estate Law; Dill v. Wisner, 23 Hun, 123.

77 § 101, Decedent Estate Law; Fink v. Berg, 50 Hun, 211; Hauselt v. Patterson, 124 N. Y. 349; Matter of Fielding, 30 Misc. 710, and this was the rule in equity when the heir was named, 2 Spence Eq. Juris. 312.

liable under this section the devise must be effectual to carry title, and not ineffectual.78 But it is not essential that the legal title shall have passed in all instances.79 A judgment recovered against an executor is not evidence against the devisee of the testator's indebtedness, as there is no privity between the executor and the devisee. If land is charged with debts by a will this section has no application.81

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82

In an action under this section all the devisees, or all the heirsat-law, must be joined. The personal representatives can not be joined with the heirs or devisees, as the theory of their respective liabilities is different and incongruous. 83

The right of defendants to counterclaim in actions of this nature is restricted.84 But the heirs or devisees may answer, and prove that there are other debts of decedent of the same or a prior class as plaintiff's and properly chargeable against the land.st

85

It is denied that a judgment against the devisee under this section is entitled to a priority as against a prior judgment against the devisee personally.86 But as the theory of the statute is that the devise is subject to debts of decedent query.

How far the rights of creditors under this section may be determined in a partition suit, or in an equity action, in order to prevent circuity, is considered in several late cases, and there would seem to be no good reason why, if the proper parties are before the court, relief under this section should be refused in such cases.87 This section must be read in connection with the next succeeding section of this act, as one is complementary of the other.

78 § 101, Code Civ. Pro.; Maloney

v. Cronin, 7 St. Rep. 700.

79 Dodge v. Stevens, 94 N. Y. 209, 216; Armstrong v. McKelvey, 104 id. 179, 184.

80 Burnham v. Burnham, 46 App. Div. 513, affd., 165 N. Y. 659; Holly v. Gibbons, 176 N. Y. 520, 528.

81 102, Decedent Estate Law. 82 Dodge v. Stevens, 94 N. Y. 209; 8.1846, Code Civ. Pro.

83 Hayward v. McDonald, 7 N. Y. Civ. Pro. Rep. 100; Greene v. Martine, 27 Hun, 246.

84 Mortimer v. Chambers, 63 Hun, 335.

85 Hauselt v. Patterson, 124 N. Y. 347, 357.

86 Hagadorn v. Hart, 16 N. Y. Supp. 625.

87 Hughes v. Golden, 44 Misc. 128; Hamlin v. Smith, 72 App. Div. 601, 612; Colgan v. Dunne, 50 Hun, 443; Olmstead v. Latimer, 158 N. Y. 313, 317.

§ 102. Liability of heir or devisee not affected where will makes specific provisions for payment of debt. The preceding section and article two of title three of chapter fifteen of the code of civil procedure do not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised, or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised.

Formerly 1859, Code of Civil Procedure:

1859. This article not applicable when a will charges real property, etc.— This article does not affect the liability of an heir or devisee, for a debt of a testator, where the will expressly charges the debt exclusively upon the real property descended or devised, or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised.88

Commentary. This section was transferred to the Code of Civil Procedure from the Revised Statutes,89 in the manner detailed under the prior section of this act, although it was an enlargement of an older legislative scheme for the relief of creditors. Indeed, the legislation in question began in 1774 or earlier.90

The scope of the entire legislative reform in question was in effect to charge lands with decedent's debts, both simple and specialty, to the same extent that they might be expressly charged by a will. If lands were expressly charged in a will with payment of debts it was deemed proper by the Legislature to declare that the statutory charge was inapplicable. Hence this section.92 Equity would probably have so declared in any event without the

88 Repealed by 8 130, Decedent Estate Law.

89

39 2 R. S. 453, § 35.

90 Supra, pp. 478, 479.

81 Matter of Kinn, 136 App. Div.

92 2 R. S. 453, § 35; § 1859, Code Civ. Pro.; 102, Decedent Estate Law.

aid of this section, for the protection of the Statute of Wills and in order to preserve the rights of testators freely to charge their lands by will. After the passage of the Revised Statutes, the same end was accomplished in England by statute, 3 & 4 William IV, chap. 104, making lands equitable assets for payment of debts, unless such debts were charged on the lands by will.

93

It is obvious that in this State, in order to relieve particular lands from the statutory liability to respond equally or pro rata to the payment of debts, the express charge on the lands by will must correspond with the requirements of this section. Otherwise section 101 of the Decedent Estate Law will apply, and all lands will be equitable assets for the payment of debts.

95

The section prescribes that the debts must be exclusively so charged on real property, or made payable exclusively out of the property descended or devised. When they are so charged creditors can only claim by force of the devise or charge, and the proceeds of the estate so charged are distributable as legal, not equitable assets. If there is a testamentary trust for the payment of debts the remedy in like manner is to enforce the trust. In either event, section 101 of this act has no application. Hence it becomes in all cases necessary to inquire whether in point of fact debts have been so charged on lands. Mr. Jarman in his work on wills affords some guide to the answer to this question, although the cases are only indirectly in point. Sometimes land is expressly charged not only with debts but with the payment of legacies, but legacies are never included with debts, even by implication, and a charge of debts excludes legacies."7

What amounts to a charge of debts on lands is sometimes a question of much nicety. At a time when lands were not assets for the payment of debts unless charged, the court laid hold of every implication to charge them. But the reason for such con

93 101, Decedent Estate Law. 94 $ 102, Decedent Estate Law. 95 Holly v. Gibbons, 176 N. Y. 520, 526; Matter of Gantert, 136 N. Y. 106; Mellen v. Mellen, 139 N.

Y. 210; Dunning v. Dunning, 82 Hun, 462, 467. Cf. Dill v. Wisner, 23 Hun, 123.

96 2 Jarman on Wills, chap. XLVI. 97 Cf. Hoyt v. Hoyt, 85 N. Y. 142.