Dox v. Backenstose
New York Supreme Court
Demurrer to plea. The plaintiff declared on a scire facias quare excutionem non. The defendant pleaded that she had not, before the issuing of the scire facias, rendered and settled the accounts of her administration, wherefore she prayed judgment if the plaintiff ought to .have execution. To this plea the plaintiff demurred.
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Demurrer to plea. The plaintiff declared on a scire facias quare excutionem non. The defendant pleaded that she had not, before the issuing of the scire facias, rendered and settled the accounts of her administration, wherefore she prayed judgment if the plaintiff ought to .have execution. To this plea the plaintiff demurred. The plea of the defendant is no answer to the declaration, for admitting that the plaintiff cannot sue out an execution, until after the administratrix has accounted, still he is entitled to judgment that he have his execution. Should he, after such judgment, issue…
1Opinion of the Court
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 *543of 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…
2Cited by17 opinions
- Porter v. . Williams and ClarkNew York Court of Appeals · 1853
- Cooley v. BrownSupreme Court of Iowa · 1870
- Probate Court v. VanduzerSupreme Court of Vermont · 1841
- Wallace v. . SwintonNew York Court of Appeals · 1876
- Schmitz v. . LanghaarNew York Court of Appeals · 1882
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