his complaint, or alleges in a supplemental complaint, that real property, other than that included in the deeree, descended or was devised to the defendants. If the plaintiff elects to proceed under such an allegation, he is entitled to a preference in payment, out of the real property, with respect to which the allegation is made; but he cannot share, as a creditor, in the distribution of the money, arising from the disposal of the real property, described in the decree; and the judg ment in the action does not charge, or in any way affect, that property. Id., 253. An action against 1846. Action must be joint. heirs or devisees, brought as prescribed in the last three sections, must be brought jointly against all the heirs, to whom any real property descended from the dece dent, or jointly against all the devisees, as the case may be. L. 1837, ch. 460, 73 (4 Edm. 500), amended. Kellogg v. Olmstead, How. 487; Cassidy v. Cassidy, 1 Barb. Ch. 467; Mersereau v. Ryerss, 8 N. Y. 261; see, also, Wood v. Wood, 26 Barb. 356; Wilkes v. Harper, 1 N. Y. 586. § 1847. Recovery to be apportioned. In such an action, the sum, which the plaintiff is entitled to recover, for damages and costs, must be apportioned among all the defendants, in proportion to the value of the real property descended to each heir, or devised to each devisee, as the case may be, as prescribed in section 1839 of this act, for a similar apportionment among legatees or next of kin, in proportion to the assets received by them. The final judgment must, in like manner, award against each defendant the propor tionate sum, with which he is chargeable. 2 R. S. 455, 28 52 and 53 (2 Edm. 474). Mallon v. Griffith, 3 Paige, 402; Wambaugh v. Gates, 1 How. App. Cas. 247; see 1839; Whittaker v. Young, 2 Cow. 569; Schermerhorn v. Barhydt, 9 Paige, 28. § 1848. Requisites to recovery against heirs. Where the action is brought against heirs, the plaintiff must show, either 1. That the decedent's assets, if any, within the State were not sufficient to pay the plaintiff's debt, in addition to the expenses of administration, and debts of a prior class; or 2. That the plaintiff has been unable, or will be unɛ. ble, with due diligence, to collect his debt, by proceed. ings in the proper surrogate's court, and by action against the executor or administrator, and against the surviving husband or wife, legatees, and next of kin. The executor's or administrator's account, as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts, required to be shown by this section. Id., 33, as amended L. 1859, ch. 110; see, also, id., 36. Stuart v. Kissam, 11 Barb. 271; Mersereau v. Ryerss, 3 N. Y. 261; Butts v. Genung, 5 Paige, 254; Gere v. Clark, 6 Hill, 650; Schermerhorn v Barhydt, Paige. 28; see, also, Wood v. Wood, 26 Barb. 356, and Malloy v. Vander bilt, 4 Abb. N. C. 127; Selover v. Coe, 63 N. Y. 438. § 1849. Id.; against devisees.-- Where the action is brought against devisees, the plaintiff must show, in addition to the matters specified in the last section, either that the real property of the decedent, which descended to his heirs, was not sufficient to pay the plaint iff's debt, or that the plaintiff has been unable, or will be unable, with due diligence, to collect his debt by an action against the heirs. Id., 22 56 and 59 consolidated. Wambaugh v. Gates, 1 How. App. Cas. 247; affi'g 11 Barb. 505; Stuart v. Kissam, id. 271; Mersereau v. Ryerss, 3 N. Y. 261; Butts v. Genung, 5 Paige, 254; Schermerhorn v. Barhydt 9 id. 28; Gere v. Clark, 6 Hill, 350. 1850. Deductions for prior recoveries.- Where the assets, applicable to the plaintiff's debt, were suffi cient to pay a part thereof, or a part thereof has been collected from the executor or administrator, or from the surviving husband or wife, next of kin, or legatees, the plaintiff can recover only for the residue, remaining unpaid or uncollected; and if the action is against devisees, he can recover only for the residue, which the real estate descended, or the amount of his recovery against the heirs, is insufficient to discharge. id., 34 and 57 amended and condensed. 1851. Complaint to describe land descended, eto -The complaint must describe, with common certainty, the real property, descended or devised to the defendant; and must specify its value. Id., 22 44 and 60. Rosevelt v. Fulton, 7 Cow. 71. § 1852. Judgment; when to be satisfied out of land.--If it appears that any of the real property, which descended or was devised to a defendant, had not been aliened by him at the time of the commencement of the action, the final judgment must direct, that the debt of the plaintiff, or the proportion thereof which he is entitled to recover against that defendant, be collected out of that real property. Such a judgment is preferred, as a lien upon that property, to a judgment obtained against the defendant, for his individual debt or demand. Id.. 2 47 and 48. Parsons v. Bowne, 7 Paige, 354; see, also, 22 870 and 872, ante. See Wambaugh v. Gates, 1 How. App. Cas. 247; affi'g 11 Paige, 505; Morris v. Mowatt, 2 id. 586; Van Wezel v. Wyckoff, 3 Sandf. Ch. $28. 1853. Id.; when not a lien on land aliened.-But a judgment, rendered as prescribed in the last section, does not bind, and the execution thereupon cannot in any way affect, the title of a purchaser, in good faith and for value, acquired before a notice of the pendency of the action is filed, or final judgment is entered, and the judgment-roll filed. Id., 51 and 61, amended and condensed. Waring v. Waring, 3 Abb. Pr. 246; Wambaugh v. Gates, 1 How. App. Cas. 247; s. c., 11 Paige, 505; Hyde v. Tanner, I Barb. 75. § 1854. How judgment taken, when land aliened.If it appears that, before the commencement of the action, or afterwards and before the filing of a notice of the pendency of the action, the defendant aliened the real property descended or devised to him, or any part thereof, the plaintiff may, at his election, take a final judgment against him for the value of the property so aliened, or so much thereof as may be necessary, as in an action for the defendant's own debt. Id., 49, and part of 2 61. Van Deusen v. Brower, 6 Cow. 50. 1855. Classification of debts, to be enforced under this article.-Where the surviving husband or wife, next of kin, legatees, heirs, or devisees, are liable for demands against the decedent, as prescribed in this article, they must give preference in the payment thereof, and they are so liable therefor, in the order prescribed by law, for the payment of debts by an executor or administrator. Preference of payment cannot be given to a demand, over another of the same class, except where a similar preference by an executor or adminis trator is allowed by law. The commencement of an action, under any provision of this article, does not entitle the plaintiff's demand to preference over another of the same class, except as otherwise specially pre scribed by law. Id., 22 37 and 38. § 1856. Defence, by reason of other prior or equal claims. Where it appears, in an action brought as prescribed in this article, that there are unsatisfied demands against the decedent's estate, of a class prior to that of the plaintiff's demand, the defendant is entitled to judgment, if the value of the property, which was received devised, or inherited, as the case may be, by the class to which he belongs, does not exceed the amount of the valid demands of a prior class. If it exceeds the amount of those demands, the judgment against the defendant cannot exceed such a proportion of the plaintiff's demand, as the total amount of the valid demands of his class bears to the excess. Id., 22 39 and 40, consolidated. Schermerhorn v. Barhydt, 9 Paige, 28; Butts v. Genung, 5 id. 254. § 1857. Id.; when such a claim is paid.-Where a defendant, or a person belonging to his class, has paid a demand against the decedent's estate, of a class prior to that of the plaintiff's demand, or has paid a demand of the same class, the amount of the demand so paid must be estimated, in ascertaining the amount to be recovered, as if it was outstanding and unpaid. Id., 41. § 1858. Action not suspended by infancy.—An ac tion against heirs or devisees, brought as prescribed in this article, is not delayed, nor is the remedy of the plaintiff suspended, by reason of the infancy of any of the parties; except that an execution shall not be issued against an infant heir or devisee, until the expiration of one year after final judgment is rendered, and the judgment-roll filed. Id., 28 42 and 54, consolidated. Shooke v. Phillips, 5 Cow. 440; Van Deusen v. Brower, 6 id. 50; and see Schermerhorn v. Barhydt, 9 Paige, 28 1859. This article not applicable, where wil charges real property, etc.-This article does not affect the liability of an heir or devisee, for a debt of a testa tor, where the will expressly charges the debt exclu sively upon the real property descended or devised, or makes it payable exclusively by the heir or devisee, or out of the real property descended or devised, before resorting to the personal property, or to any other real property descended or devised. Id., 22 35 and 38, amended. 1860. One action, where same person is heir, devisee, etc.-Where a person, who takes real property of a decedent by devise, and also by descent; or who takes personal property as next of kin, and also as legatee; or who takes both real and personal property in either capacity; or who is executor or administrator, and also takes in either of the before mentioned capaci ties; would be liable in one capacity, for a demand against the decedent, after the exhaustion of the remedy against him in another capacity; the plaintiff, in any action to charge him, which can be maintained, with out joining with him any other person, except a person whose liability is in all respects the same, may recover any sum, for which he is liable, although the remedy against him in another capacity was not exhausted. But this section does not increase the sum, which the plaintiff is entitled to recover against him, in the capacity in which he is actually liable; nor does it charge a defendant individually, who is liable only in a representative capacity. New. See Stuart v. Kissam, 11 Barb. 271. ARTICLE THIRD. ACTION TO ESTABLISH OR IMPEACH A WILL. SEC. 1861. When action to establish a will may be brought. 1862. Judgment, that will be established. 1863. Judgment admitting the will to probate. 1864. Contents of judgment; surrogate's duty. 1865. Proof of lost will in certain cases. 1866. Action to establish, etc., will, relating to real property. § 1861. When action to establish a will may be brought. An action to procure a judgment, establishing a will, may be maintained, by any person interested in the establishment thereof, in either of the following cases: |