In re Gates' Estate

Judgment for $184.54 was duly recovered June 25, 1878, in favor of James Matteson against the decedent, Ira L. Gates, before a justice of tile peace of Chautauqua county, on which a transcript was duly made by such justice and filed, and judgment duly entered and docketed thereon for $185.29 in the clerk’s oflic-e of said county on July 3d of same year. Ho part of the judgment lias been paid, or execution issued to collect it, and same thereupon became a lien on the lands of the decedent described in the petition herein. Soon thereafter the said Ira L. Gates gave a mortgage for $1,000 on same lands, which was duly recorded, to said Hiram Putnam, which remains unpaid. The decedent, on December 13, 1884, being six years and five months after the judgment was docketed, died intestate, leaving no personal property to pay the judgment or other debts owing by him at his decease. An administrator was duly appointed of his estate on September 13, 1888, who settled the estate as such, and was d uly discharged January 4, 1890; the order granting leave herein to issue execution being made March 9, 1892, and execution issued to sell said lands only a few days less than three years and six months after granting the letters of administration.

It was claimed by the learned counsel for the mortgagee on the trial herein, and denied by the petitioner, that the judgment was outlawed. The petitioner claimed that the lien of judgment would not expire until March 13, 1892, being three years and six months after letters of administration were granted. The mortgagee claimed that, such lien expired June 13, 1888, being three years and six months from death of intestate, on December 13, 1884. The important question in this case arises on construction to be given-to the meaning of the word “thereafter” in the third'sentence of section 1380 of the Code,—whether, in the connection used, it means three years and six months after letters of administration were issued, or same length of time after death of decedent. If the latter, the lien had already expired; if the former, it has not. Such section reads as follows: “Sec. 1380. After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was-still living. But such an execution shall not be issued unless an order-granting leave to issue it is procured from the court from which the execution is to be issued, and a decree to the same effect is procured from a surrogate’s court of this state, which has duly granted letters testamentary, oc letters of administration, upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in section 1251 of tills act,^[1] neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent, and for that purpose such a lien existing at the decedent’s death continues for three years and six months thereafter, notwithstanding the previous expiration of ten years-from the filing of the judgment roll. ” But where the decedent died intestate,