Dox vs. Backenstose, administratrix, &c., 12 Wend. 542

By the Court, Savage, Ch. J. The revised statutes have materially altered the law and the practice in relation to executors and administrators. Formerly, it was often important to obtain a judgment as early as possible against an executor or administrator; for the first judgment was entitled to priority in payment. But now, neither the commencement of a suit, nor the obtaining a judgment against an executor or administrator, entitles such debt to a pi’eference over others of the same class. 2 R. S. 87, § 28. The jurisdiction of the surrogate has been extended and enlarged in relation to this class of persons.

Executors and administrators themselves have a new character, and stand in a different relation from what they formerly did to the creditors of the deceased persons with whose estates they are entrusted.

They are not now the mere representatives of their testator or inestate — they are constituted trustees; and the property in' their hands is a fund, to be disposed of in the best manner for the benefit of the creditors, and not liable, as it once was, to be dissipated in bills of costs, created by the anxiety of creditors to obtain the first judgment, and thus secure the payment of their debts to the prejudice perhaps of others. Now a more equitable rule prevails.

No preference is given among debts of the same class. “ No execution shall issue upon a judgment against an executor or administrator until an account of his administration shall have been rendered and settled, or unless on an order of the surrogate who appointed him ; and if an account has been rendered to the surrogate by such executor or administrator, execution shall issue only for the sum that shall have appeared, on the settlement of such account, to have been a just properlion of the assets applicable to the judgment.” 2 R. S. 88, § 32. The provision is pos-tive.

Until the statute has been complied with, the plaintiff is not in a situation to issue an execution. The defendant here is called on to show cause why execution should not issue. She does show cause ; and that cause is, that until the plaintiff calls her into another court, and gives her an opportunity to show before the appropriate tribunal the true state of the fund in her hands, he is not in a situation to ask this court for an execution upon the judgment. If 18 months have expired since her appointment, the plaintiff may obtain an order from the surrogate requiring her to render an account of her proceedings.

On the rendering of such account, the surrogate is invested with equitable powers. The statutory provisions on the subject are ample; to the surrogate the plaintiff must resort, and there have the matter examined, and the amount, if any due him, liquidated, and an or(jer obtained, specifying the amount for which execution may issue. All this is good cause for the defendant to show why this court ought not at present to award an execution.

Whether the former practice of proceeding by scire facias,, to issue execution against executors and administrators, has not been superseded by the statute transferring to the surrogate authority to order the issuing of an execution, is a question not now necessary to be decided; but if it is not, it seems to me the intention of the legislature may be frustrated. I doubt very much whether this court would be justified in looking into the equities, which are properly inquirable into before the surrogate ; if it would not, it is evident that the whole subject is under the supervision and control of the surrogate.

I see no good reason for preventing a plaintiff)'who has the surrogate’s order, from instituting proceedings in this court; but on this point no definite opinion is given. It is enough that,' until the order is obtained, no execution can issue. Judgment for defendant, on demurrer ; leave to plaintiff to-reply.