§ 5208.Enforcement after death of judgment debtor; leave of court; extension of lien.

This section replaces the last paragraph of former § 655 and all of former § 656.

Execution upon a judgment entered in the name of a deceased judgment debtor—i.e., where the judgment was entered, or the verdict or decision made, while he was still alive—should be distinguished from execution upon a judgment against an executor or administrator. In the latter case, while § 151 of the Decedent Estate Law, like CPA § 656, requires leave of the Surrogate’s Court, the definition of § 105(k) indicates that the executor or administrator—i.e., the estate—is the “judgment debtor.” At common law, when a judgment debtor died, the judgment had to be “revived” by a writ of scire facias, by which the persons who became interested in the decedent’s property were ordered to show cause why the creditor should not have execution; the purpose of this procedure was to insure notice to those who would be in a position to allege satisfaction of, or a defect in, the judgment, since the debtor was no longer able to contest the execution and the rights of the new owners of the property were affected thereby.

When the Field Code was enacted, the revisors replaced the procedure by writ of scire facias with a statutory remedy as follows:

§ 329. In case of the death of the judgment debtor after judgment, the personal representatives, heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may be summoned to show cause, why the judgment should not be enforced, against the estate of the judgment debtor in their hands respectively. [Laws 1848, c. 379, § 329.].

This language clearly contemplated enforcement against both real and personal property, since real property would be in the “hands” of heirs, devisees or tenants and personal property would be in the “hands” of personal representatives and legatees. In 1849, § 329 was amended and renumbered 376, to read as follows:

§ 376. In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees, of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment debtor may be so summoned, at any time within one year after their appointment. [Laws 1849, c. 438, § 376.].

Since real property is considered to vest upon death in the heir or devisee, executions against real property were thus delayed three years. In the case of personal property, however, the use of the word “legatees” in the first part of the amended section and “personal representatives” in the latter part implies that executions were to be delayed three years if the property was already in the “hands” of the legatees, but only one year if it had not yet been distributed. The purpose of the delay was apparently to allow time for procedures in the Surrogate’s Court. See, e.g., Surr Ct Act § 233 (proceeding to sell real property may be brought during the same period as that specified as a delay in CPA § 656); cf. CPA § 12 (extension of statutes of limitation for same period where person liable dies without the state); id. § 21 (same extension measured from death of a person liable who dies within the state). In any case, it remained clear that the rule applied to personal property.

Despite this replacement of scire facias, provisions regulating the writ remained in the Revised Statutes, and, as pointed out by Throop, “[t]o what extent those provisions continued in force, and applicable to the new remedy, was a question not settled by judicial construction, when this Code [of Civil Procedure] was enacted.” Code Civ Proc c. XV, art 3, preliminary note (Throop ed 1881).

In 1850, a provision was enacted and placed in the Revised Statutes. It covered much the same area as § 376 of the 1849 Code and read:

“Notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate, or chattels real, upon which such judgment shall be a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution can not be issued within a year after the death of the defendant, nor in any case unless upon permission granted by the surrogate of the county who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor, which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid.” [Laws 1850, c. 295, § 1.].

This provision was apparently derived from § 832 of the Field Code, as reported complete in 1850, which was derived, in turn, from the Revised Statutes. See NY Rev Stat pt 3, c. VI, tit 5, § 27 (1829). The Field Code provision, however, required permission of the Surrogate only within the first year; its predecessor in the Revised Statutes simply provided for the one-year delay. Moreover, § 832 of the 1850 Field Code was not intended to supersede § 329 of the 1848 Code. The latter, without the 1849 amendments, was repeated as § 1214 in the 1850 report.

The phrase which modified the described property in the provision enacted in 1850, “upon which such judgment shall be a lien,” and the other language chosen, implies that the provision was limited to real property executions. Indeed, the act of 1850 is entitled “An Act to provide for the enforcement of judgment liens against the real estate and chattels real of deceased judgment debtors.” Faced with these provisions—the scire facias provisions whose applicability was “not settled,” the Field Code provision of § 376 and the 1850 provision—the drafters of the Code of Civil Procedure chose the last. In explanation, Throop notes that the 1850 provision “rendered practically useless [§ 376 of the Field Code] and the entire system of proceeding thereunder.” NY Code Civ Proc c. XV, art 3, preliminary note (Throop ed 1881). The 1850 provision which required the Surrogate’s approval was adopted, but approval of the enforcement court was added to cover the provisions of § 376. Id. § 1380, note. As so expanded, the provision was considered “so ample, that . . . [§ 376 of the Field Code] and the corresponding sections of the [Revised Statutes were] . . . repealed, without providing any substitutes therefor.” Id. c. XV, art 3, preliminary note; cf. Wallace v Swinton, 64 NY 188, 194– 95 (1876); Marine Bank of Chicago v Van Brunt, 49 NY 160, 163–64 (1872).

Former CPA §§ 656 and 657 were direct descendants of the 1850 provision, since the double approval was removed in 1940. NY Laws (1940) c. 32. Despite Throop’s assertion that they were “ample”—and that the former provision was “practically useless”—the former provisions were misleading and incomplete. The phrase “upon which such judgment shall be a lien” has had to be read out by judicial construction with respect to at least one application of the section so that leave of court was held to be necessary as to an execution against realty upon which the judgment was no longer a lien because ten years had elapsed since filing of the judgment-roll. Atlas Refining Co. v Smith, 52 App Div 109, 64 NY Supp 1044 (4th Dept 1900); see notes to CPLR § 5235; cf. Kenny v Geoghegan, 9 NY Civ P 378 (NY C Ct 1886). As has been demonstrated above, it seems only historical accident that those sections (and, by implication, the last paragraph of § 655) did not apply on their face to all executions, whether or not a lien and whether against real or personal property.

Accordingly, the first sentence of this section has been designed to expressly require leave of court for all executions. The time delay period has been omitted; since the matter is one to be decided by the Surrogate’s Court, there seems no reason to foreclose even consideration of the matter by the Surrogate. Moreover, the provision includes other enforcement procedures, such as restraining notices or subpoenas, which may be necessary to the security of the creditor, but which should be under the control of the Surrogate. In effect, the provision reinstates the original Field Code provision with leave of the Surrogate’s Court required to revive the judgment.

Of necessity, the creditor would be delayed until letters are granted. If letters are not granted by eighteen months after death, the second sentence of the section permits recourse to an enforcement court. This provision is derived from subd 4 of former § 656. Since the creditor will therefore be delayed no longer than eighteen months after death, the last sentence of the section extends any real property lien for two years after death, even if ten years have expired since the judgment-roll was filed. This sentence is derived from the last phrase of former § 656(3) and the last sentence of former § 656(4). Contrary to the extension provided by CPLR § 5203(b), no order need be filed, since the fact of a debtor’s death would be known to a prospective purchaser who may be examining the docket.

The former time delay periods were confusing. When the Code of Civil Procedure was drafted, the one-year-after-death delay of the 1850 provision was utilized. Subsequently, in 1879, so much of the “practically useless” Field Code § 376 was reinserted as required a three-year delay after granting of letters, but the amendment was limited to a case where the lien was created by docketing. Laws 1879, c. 542; see Code Civ Proc § 1380, note (Throop ed 1881). The 1879 amendment also added the extension of lien provision. Since it was not clear whether a judgment could create a lien in any other way than by docketing (the “temporary lien” of former § 512 was created after execution has been issued), the 1879 amendment, which survived as an eighteen-month delay and two-year extension in subd 3 of CPA § 656, apparently superseded the one-year delay, which survived in subd 1 of § 656, rendering the latter meaningless.

It should also be noted that without reference to the extension of lien provision in the predecessor of § 656, one court held that the counterpart of the extension of lien provision from which CPLR § 5203(b) was derived extends the lien of a judgment, because the creditor was stayed by the other provisions in the predecessor of § 656 from enforcing his judgment. Matter of Holmes, 131 NY 80, 84–85, 29 NE 1003, 1005 (1892).

Despite the inadequacies of former § 656, it has caused little difficulty in practice, primarily because it is seldom utilized. If a judgment debtor died, the usual practice was for the judgment creditor to file a claim in the Surrogate’s Court and there was no necessity for seeking execution. The Surrogate’s Court Act provisions are not without doubt, however, but, unless an estate is insolvent, questions of priority or lien do not arise.

Under § 212(3) of the Surrogate’s Court Act, judgments are given preference in payment over other debts of the decedent “according to the priority thereof.” This “priority” has been held to be the chronological order of docketing, regardless of whether a lien on real property was ever created. Matter of Townsend, 83 Hun 200, 31 NY Supp 409 (Gen T 2d Dept 1894) (judgment over ten years old and therefore no longer a lien has “priority” over judgment less than ten years old which is a lien); Ainslie v Radcliffe, 7 Paige 439 (NY Ct Ch 1839) (same); Matter of Paige’s Estate, 146 Misc 885, 262 NY Supp 870 (Surr Ct 1933) (Municipal Court judgments for which no transcripts filed and which therefore never were liens have “priority” over subsequently-docketed City Court judgment which was a lien because a transcript had been filed); cf. Matter of Murray’s Estate, 157 Misc 549, 283 NY Supp 975 (Surr Ct 1935) (new judgment has “priority” as of date of original judgment sued upon); Matter of Taylor’s Estate, 178 Misc 217, 33 NYS2d 584 (Surr Ct 1942) (judgment awarded before death but entered and docketed after death, which in accordance with CPA § 478 “does not become a lien upon the real property or chattels real of the decedent; but . . . establishes a debt to be paid in the course of administration,” has priority as a judgment over other debts). But see Matter of Wakefield’s Estate, 146 Misc 58, 260 NY Supp 633 (Surr Ct 1932) (Justice Court judgment not entitled to preference because transcript, which was not filed until after death, could create no lien).

This priority between judgments therefore differed from the priority which the creditors would have had if the debtor was living: in the case of real property, former § 510(1) allowed the judgment creditor who docketed in the county where the property was located priority over a judgment which was previously docketed elsewhere; in the case of personal property, former § 679 prescribed priority in the order in which executions were delivered to the sheriff, regardless of when the judgment was docketed. See also CPA §§ 509, 648.

The judgment creditor with a lien on real property of a decedent thus appears to have no advantage over one without such a lien, at least in the priority of payment under § 212(3) of the Surrogate’s Court Act.

Subdivision 1 of § 234 of the Surrogate’s Court Act specifies as one of the purposes for which real property may be sold, “the payment of the debts of the decedent, including judgment or other liens, excepting mortgage liens, existing thereon at the time of his death.” While this seems to limit judgment creditors to those having liens existing on the particular property to be sold, the word “debts,” at least in modern usage, would include all judgments. But see Matter of McGee, 65 App Div 460, 73 NY Supp 64 (2d Dept 1901) (judgment which was not a lien on particular realty was “not properly payable out of the proceeds of the sale” of that realty); Matter of Stowell, 15 Misc 533, 534– 35, 37 NY Supp 1127, 1128 (Surr Ct 1896) (“By the terms of the original statute the disposition of real estate was authorized through proceedings in probate courts solely for the payment of the debts of decedents; by a subsequent provision this remedy was extended to funeral expenses, and by the amendment of 1894 it was so extended as to authorize the proceeding for the payment of judgment liens existing at the time of the decedent’s death.“) Moreover, subd 7 of § 234 of the Surrogate’s Court Act, which was added in 1936 (Laws 1936, c. 200), specifies that real property can be sold ”[f]or any other purpose deemed by the surrogate to be necessary.” It would thus appear that a judgment creditor with a lien has little advantage over one without a lien in securing a sale of realty to pay his judgment.

Despite the McGee case dicta, the proceeds of a sale of realty are apparently distributed in accordance with the rules of Surrogate’s Court Act § 212 for payment of debts (cf. Matter of Tierney’s Estate, 88 Misc 347, 151 NY Supp 972, 976 (Surr Ct 1914)), which, as previously noted, give a creditor with a lien no priority of payment. Apparently, however, if the creditor were not paid, his lien would survive the sale, as it would a sale made by the judgment debtor while living, and he could thereafter levy upon the property in the hands of the purchaser, who would have taken subject to his lien, by leave of court under former CPA § 656, which is replaced by this section. That the creditor’s lien survives would seem to be indicated by the extension provisions previously discussed and by the provisions of former CPA § 512. See CPLR § 5235 and notes. For an extended discussion of the nature of a judgment lien on real estate see Hulbert v Hulbert, 216 NY 430, 111 NE 70 (1916). If the creditor were paid, either from other personal assets or from the proceeds of the sale, of course, his judgment would be satisfied and the purchaser would take free of his lien.

Until 1928, § 234 of the Surrogate’s Court Act contained the following paragraph:

No mortgage, lease or sale shall be ordered for the purpose of any of the foregoing payments, if there be personal property applicable to the full payment and discharge thereof.

In 1929, the paragraph was deleted (Laws 1929, c. 229, § 8), but was later restored in the same year with the addition of the words “within the state of New York” after the words “personal property.” Laws 1929, c. 519. In 1930, the paragraph was again deleted (Laws 1930, c. 174, § 11), this time with a recitation that the omission was made “pursuant to the intention of the legislature to . . . remove the present distinctions, as far as possible, between real and personal property in their treatment as assets of an estate.” Id., § 20.

Despite this history, the courts have continued to apply the rule that a sale of real property will not be ordered if personal property is adequate, basing their reasoning on a clause in § 238 of the Surrogate’s Court Act which deals with the order of sale of several parcels of realty. See, e.g., Matter of Bate’s Estate, 167 Misc 641, 4 NYS2d 444 (Surr Ct 1938). Thus it would appear unlikely that an execution against real property would have been permitted pursuant to CPA § 656, if the estate had sufficient personalty to pay the judgment. And, as previously noted, if there are sufficient assets, the priority of payment would be immaterial.

Section 5203(a)(5) specifically exempts transfers after death from that section’s provisions, so that the personal property lien and priority there created would not survive and creditors would be subject to the priorities specified in § 212 of the Surrogate’s Court Act for the payment of their judgments.

It should be noted that a judgment docketed after the death of the judgment debtor would appear to create no lien on realty since the property vests in the heirs or devisees immediately upon death. See Matter of Wakefield’s Estate, supra; cf. Civ Prac Act § 512; CPLR § 5235 and notes.

It should also be noted that there is authority in New York that the death of a judgment debtor after execution has been issued will not affect the validity of the execution. Wood v Morehouse, 45 NY 368 (1871). In the Wood case, however, real property was involved and there was no necessity for a levy, as would be the case with personal property. Moreover, the sheriff in the Wood case had already commenced sale proceedings.

Subd 5 of former § 656 has been omitted. Its statement that, during the eighteen-month delay prescribed by subdivision 3 of that section, recourse may be had to § 234 of the Surrogate’s Court Act for the disposition of the decedent’s real property for the payment of his debts, is unnecessary. As previously noted, moreover, the Surrogate’s Courts are reluctant to permit disposition of real property to pay debts, unless personalty has been exhausted; and the new section omits the delay period of former § 656(3).

Subd 6 of former § 656 has also been omitted. It permitted an execution, without leave of court, where property had been conveyed in fraud of creditors. It apparently applied only where the conveyance had been adjudged fraudulent. Matter of Holmes, 131 NY 80, 85, 29 NE 1003, 1005 (1892); cf. NY Debt & Cred Law § 278(1)(b) (creditor may disregard such a conveyance and levy on the property). Further, it would seem that the conveyance must have been “declared fraudulent while the grantor is still alive.” Aetna Casualty & Surety Co. v Amling, 122 NYS2d 156, 159 (Sup Ct 1953). It is difficult to see the necessity for this subdivision, since upon such an adjudication, the conveyance would be set aside and the creditor would thereafter be in the same position as if it had not been executed or delivered.

The provisions of former § 657 regulated the proceedings in the Surrogate’s Court and are therefore more appropriate in the Surrogate’s Court Act. They have been so transferred, as § 212-a, which reads as follows:

§ 212-a. Leave to issue execution against decedent’s property.

For the purpose of procuring a decree from the surrogate’s court granting leave to issue executions against a decedent’s property, a judgment creditor shall present to the surrogate’s court a written petition, duly verified, setting forth the facts and praying for such a decree, and that the person whose interest in the property will be affected by a sale by virtue of the execution and the executor or administrator of the judgment debtor may be cited to show cause why it should not be granted. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. Such citation must be served either personally or in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon the return thereof, he must make such a decree in the premises as justice requires.

Add, L 1962, ch 308; amd, L 1963, ch 532, § 25, eff Sept 1, 1963.