Baker v. Kingsland — 3 Sarat. Ch. Sent. 73

Majority

p. 73

Elizabeth Baker et al, Ex’rs, &c. v. Stephen Kingsland.

Headnote

Application to surrogate for or-⅞⅛⅛⅞1 ⅜⅛ dent to pay debts

of applicant how to be proved-

S. F. Clarkson, for apppellants.

Decided that upon an plication to a surrogate, by a creditor of a decedent, for an order directing that'the real estate of the decedent be inort-gaged or sold for the payment of his debts; if the indebtedness is denied by the heirs or personal representatives, the applicant must prove the same before the surrogatetive of any judgment he may have obtained against the personal representatives. And that the docket of a judgment recovered in the supreme court, and not entered in the county clerk’s office, as directed by the act of 1840, is not legal evidence of the recovery of such judgment.

It was also, held that as there is no privity between the personal representatives of ,the decedent and his heirs or devi-

p. 74

sees, in respect of his real, estate, the recovery of a judgment against the executors is not admissible as evidence of a debt debt due from the decedent, as against the owners of the real estate, either by descent or devise.

And that before the surrogate is authorized to make any order for the mortgaging, leasing, or sale of the real property of the decedent, he must be satisfied, by legal proof, that the debt for the purpose of satisfying which the application is made is justly due and owing from the decedent, as against the owners of the real estate.

Order appealed from reversed, with costs, and respondent’s application to sell or mortgage the real estate dismissed ; but without prejudice to his right to renew it.