Mitchell v. Mount
New York Supreme Court
Appeal from an order of the surrogate of New York county. This was an appeal taken by Richard E. Mount, Jr., executor of William B. Moffat, from an order allowing an execution against him upon a judgment recovered by John Mitchell and Abraham Cummings. The action was pending against Moffat, in the New York Common Pleas, at the time of his death.
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Appeal from an order of the surrogate of New York county. This was an appeal taken by Richard E. Mount, Jr., executor of William B. Moffat, from an order allowing an execution against him upon a judgment recovered by John Mitchell and Abraham Cummings. The action was pending against Moffat, in the New York Common Pleas, at the time of his death. The action was continued against Mount as executor ; and plaintiff, in July, 1863, had judgment for $1261.70, after a trial at law upon the merits. In September, 1863, the plaintiff filed a petition in the Surrogate’s Court, setting forth the facts…
1Opinion of the CourtClerke, J.
On appearing before the surrogate, on the order to show cause, the executor showed that he had only received from the personal estate $11,000, and that the personal debts amounted to $42,000. Notwithstanding this, the surrogate decided that the judgment should be forthwith paid, and accordingly ordered an execution against the executor for the full amount of the judgment.
The statute (3 Rev. Stat., 5 ed., 204, § 21), authorizing the ' surrogate to order an execution to be issued in such cases, does not authorize him to order an execution in cases where the debts exceed the assets, unless it is…
2Cases cited1 opinion
- Parker's Executors v. Gainer's AdministratorNew York Supreme Court · 1837