Traud v. Magnes

Headnote

Seal property—when liable for devisor's debts.

When the devisee of real property aliens the same before her death, her personal representative is liable, in a proper case, under-Art. 3, tit. 3, cli. 8, part 3, R. S., for the debts of her devisor to the same extent that said devisee was in her lifetime; viz., to the extent of the value of the real property so aliened.

Under said statute, real property which has been devised, and has descended on the death of the devisee to her heirs, may be subjected to the payment of the devisor’s debts in like manner as before the death of said devisee.

Appeal from a judgment entered on the report of a referee.

One James Moore was surety on a bond in which he bound himself, his heirs, executors, and administrators. He died, leaving a will, which was duly proven. By this will he devised a portion of his real estate to three of the defendants, and all the residue of his real estate to Ellen Fagan and Mary J. Magnes. Mary J. Magnes died in August, 1877, intestate; leaving her surviving her husband, the defendant Charles A. Magnes, and the defendants Mary E. Magnes and Charles S. Magnes, her children and heirs-at-law. Letters of administration on the estate of Mary J. Magnes were issued to the defendant, Algernon S. Sullivan, as public administrator, August 7, 1879. Judgment was entered against the executor of James Moore on this bond, March 27, 1879, for $9,326.92. Proceedings were taken in the proper surrogate’s court to enforce this judgment, but nothing was obtained on such proceedings. This action was then (August 19, 1874) commenced, for the purpose, in part, of enforcing the liability of said James Moore, as surety, against so much of her real estate devised by him to Mary J. Magnes as descended to her heirs, and for the further purpose of obtaining a judgment against her

administrator for the sum which she became personally liable to pay, as provided by statute, by reason of the alienation of certain lands so devised to her by said James Moore.

The action was begun against all the devisees of said James Moore under art. 2, tit. 3, chap. 8 of part 3 of the Revised Statutes (see 3 Rev. Btat. 6th ed. 734). It was referred, and the referee dismissed the complaint against the administrator, on the ground that “ the statute does not provide a remedy by action against the personal representative of a devisee in a case like the present.” The referee dismissed the complaint against the heirs-at-law of Mrs. Magnes, on the ground that the statute in question does not make the heirs of a deceased devisee liable for the debt of the devisor. To each of these conclusions the plain till duly excepted. The referee also found that after due proceedings before the surrogate, and at law, as required by statute, the plaintiff was unable to recover any part of the judgment from the personal representatives of James Moore, or from his next of kin, legatees, or heirs.