The Merchants' Insurance Company a. Hinman.

widow, children, or next of kin, &c. (2 Rev. Stat., 97, § 75.) 2. The right of action is given against the next of kin only. (Ib., 90, § 42.) 3. Such right being confined by the statute to them, the court cannot, by intendment, extend it to others not specially embraced in it.

II. The statute further provides that all mortgages upon lands, &c., shall be paid by the heir to whom they descend, &c. (1 Rev. Stat., 749, § 4.) 1. The plaintiffs must show that the heir refused to pay the mortgage, before they can maintain the action. 2. The request not to foreclose, if any is presumed, must be regarded as being done at the instance of the heirs, and for their benefit, and they alone are liable for any deficiency. 3. The understanding between the plaintiff's and the heirs to delay the foreclosure, is a tacit agreement on the plaintiffs' part to look to the land and the heirs for satisfaction of the mortgage.

III. The plaintiffs do not come within the provisions of the statute, which is for the benefit, only, of such creditors as may have neglected to present their claims. (2 Rev. Stat., 90, § 42.) 1. The plaintiffs presented their claim, which was acknowledged by paying interest upon it; it should, therefore, be disposed of in the same manner as other claims presented. 2. It makes no difference that the deficiency arose after distribution. The claim having been presented, it was the duty of the administrator to provide against any deficiency; he became personally liable for it, and the plaintiff must show that they have not only exhausted their remedy against the estate in his hands, but also personally and on his bond.

IV. No valid execution was issued against the administrator. (2 Rev. Stat., 87, § 32; Ib., 363, § 3; 9 Wend., 448.) There being no valid execution issued, plaintiffs have not exhausted their remedy so as to entitle them to maintain this action.

V. The action cannot be maintained against Mrs. Hinman, because it does not appear, nor is it charged, that she has any separate estate. (Cobine a. St. John, 12 How. Pr., 333; Phillips a. Hagadon, Ib., 17.) 1. The evidence shows that she had parted with her interest in the estate of her husband before the distribution took place, and never came into her possession. 2. If this was ever a separate estate of hers, it certainly was not so at the time of the commencement of the action. 3. In order to sustain a suit against a married woman, it must appear that

The Merchants' Insurance Company a. Hinman.

she had a present subsisting estate at the time of its commencement; that she once had one, will not be sufficient. 4. The estate must also be clearly described, in order to enable the court to make the necessary direction as to its application in satisfaction of the judgment. (Cobine a. St. John, Ib., 333.) 5. The judgment is defective in declaring it a lien upon her separate estate, and directing execution to issue. 6. An execution cannot issue against a married woman; the only manner a judgment can be enforced against her estate is by the appointment of a receiver to take charge of it, and apply it in satisfaction of the judgment.

VI. The defendant, R. H. Hinman, is not a proper party. 1. The cause of action arose after his marriage with Mrs. Hinman; the case, therefore, does not come within the provisions of the statute of 1853. 2. The action is not in rem. against the estate distributed, but against the next of kin personally. The estate itself is only the measure of liability of each. 3. The action being personal against them, no right of action accrued until they had received their distributive share of the estate.

Richard S. Emmett, for the infant appellants.-I. Action lies by creditors against next of kin, to whom assets shall have been paid or distributed (2 Rev. Stat., 90, § 47), and by whom such assets shall have been received (Ib., 451, § 23). No part of the assets of Thomas Lewis, deceased, was ever paid to these defendants. Their shares were paid to their guardian.

II. The liability of next of kin to creditors of a deceased intestate, grows out of a statutory contract to pay the debts due by the intestate to the extent of the assets received, which contract by the next of kin is implied from their receipt of the assets. The statute creating this liability was not intended to be in derogation of the common law governing the liability of infants.

III. The real estate mortgaged by the intestate to secure his debt, is chargeable as the primary fund for the payment of that debt. (2 Rev. Stat., 156, § 4; Johnson a. Corbbett, 11 Paige, 265.) The failure or neglect of the plaintiffs to collect the debt out of the mortgaged premises, where they might have done so, discharges the administrator or next of kin from all liability for any deficiency. (Johnson a. Corbbett, 11 Paige, 265.)

VOL. XIII.-8

The Merchants' Insurance Company a. Hinman.

Hopper & Jackson, for the respondents.-I. A widow is to her deceased husband one of the "next of kin." 1. It is assumed in all the cases, that the question who shall be included in the term "next of kin," is one of intention, to be determined by the context. (Bailey a. Wright, 18 Ves., 49; Garrick a. Lord Camden, 14 Zb., 381; King a. Dr. Betterworth, 2 Str., 1, 111; 2 Blackst. Com., 514.) 2. It is not only the clear intent of the statute to include the widow under the term "next of kin," but that is the only possible construction.

II. It is immaterial whether the distributive shares of the defendants were paid to them personally, or to their authorized agents or assignees, or to some one for their use. The actual recipient of the money was the agent of the person entitled to receive it. And the statute makes the final settlement before the surrogate conclusive. (3 Rev. Stat., 5 ed., 181, § 71.)

III. The infancy or coverture of defendants, or that no proof was given that the defendant, Mrs. Hinman, has a separate estate, is no defence. The debt is made enforceable by the statute against all who receive assets, without exception. 1. In this case the statute creates the liability, and the recipients take their share of the assets, subject to any outstanding debt of the decedent. 2. Even if no execution could at present be issued against Mrs. Hinman's estate, that does not affect plaintiff's right to a judgment. On her death all her separate estate would become a general trust-fund for the payment of all her debts. (Norton a. Turvill, 2 P. Will., 144.) 3. This action is not founded on the supposition that Mrs. Hinman has charged her separate estate by appointment, and such separate estate need not be alleged. Her liability is made general by statute, to the extent of the money received, and is not to be distinguished from the liability of the daughters. (3 Rev. Stat., 749.) 4. The infants having received their shares, they cannot avoid the liability thereby incurred, without refunding the money or paying it into court. (2 Kent's Com., 240; Roof a. Stafford, 7 Cow., 179; Weed ά. Beebe, 21 Verm., 495–500; Hamblett a. Hamblett, 6 N. H., 333-339; Smith a. Evans, 5 Humphrey's (Tenn.) R., 70; Bailey a. Barnberger, 11 B. Mon. R., 113– 115.)

IV. It is not necessary that an execution should have been issued against the administrator. (3 Rev. Stat., 451; Ib., 176,

The Merchants' Insurance Company a. Hinman.

§ 44; Ib., 177, § 47.) The fund is the same, and the right of contribution remaining, it can make no legal difference to the next of kin; while it would be unreasonable to delay the creditor, particularly after distribution and final settlement. In case of heirs, the fund is different, and the statute makes a distinction. (3 Ib., 750.)

V. The execution was regularly issued. (3 Rev. Stat., 174, § 36; Olmsted a. Vredenburgh, 10 How. Pr., 215.)

VI. The plaintiffs used due diligence. The foreclosure-suit was regular, and was commenced shortly after the first default in payment of interest.

VII. The property brought its full value. There is no evidence of any depreciation prior to the sale, which was at public auction, under direction of the sheriff, in presence of all parties, and is conclusive evidence of value.

VIII. No other debts of the intestate were proved.

BY THE COURT.*--The term "next of kin" (in regard to this remedy) means those to whom, under the act of distribution, the personal estate of the deceased would pass.

The action is properly brought against the infants, when the amount of the estate belonging to them has been paid over to the general guardian.

In such a case the judgment should direct the money to be paid out of the funds in the hands of the guardian.

Mere delay in foreclosing a mortgage, without any request or notice to foreclose, and where the interest has been paid, is not enough to charge on the mortgagees the consequences of a fall in the value of the property.

The sale by the widow of her interest in the estate, left her liable for the amount of the personal estate received by her assignee, to the same extent as if received by herself.

No judgment should be rendered against the defendant, Richard H. Hinman, and the same must be so far modified as to omit any recovery against him.

Judgment modified so as to strike out any recovery against Richard H. Hinman, and to direct the recovery against the infants to be paid out of the moneys in the hands of the guardian.

Present, CLERKE, P. J., GOULD and INGRAHAM, JJ.

Dunderdale a. Sauvestre.

DUNDERDALE a. SAUVESTRE.

New York Common Pleas; General Term, July, 1861.

EXECUTION.-LEVY TO SECURE PREFERENCE.

If a judgment-creditor, after issuing execution, instructs the sheriff to levy merely for the purpose of securing a preference and to leave the debtor in possession of the property seized, such execution becomes dormant; and a subsequent execution in favor of another creditor, delivered to the sheriff before such instructions are revoked, has a priority of lien.

Appeal from an order at special term, by DALY, J., directing the sheriff to pay the proceeds of a sale of the property of the defendant to the plaintiff, Dunderdale, instead of to Jacot, the appellant.

In December, 1859, the defendant Sauvestre confessed judgment in favor of one Jacot, for $1,000. On May 22, 1860, an execution was duly issued thereon to the sheriff of New York city. Subsequently, but on the same day, at the urgent request of Sauvestre, Jacot's attorney wrote to the sheriff the following

note:

"It is the desire of the plaintiff simply to make a levy, so as to claim a preference. There is no need of keeping a man in charge,-I am sure nothing will be removed.

"W. D. CRAFT."

It did not appear whether Jacot knew of or authorized this proceeding of the attorney, or not.

On June 27, 1860, Dunderdale obtained a judgment against Sauvestre for $452, and issued execution to the same sheriff on that day. Immediately upon receiving notice of this fact, Jacot's attorney urged the sheriff to sell at once; but he did not do so until July 14, 1860. The sale produced $254, which was claimed by both Jacot and Dunderdale. Judge Daly, at special term, directed it to be paid to the latter, and from this order Jacot appealed.

W. D. Craft for the appellant, Jacot.-I. The sole motive of