John J. Hallock, Individually and as One of the Administrators with the Will Annexed, etc., of Benjamin Hallock, Deceased, and as Executor, etc., of Harriet Hallock, Deceased, Appellant, v. Horace H. Hallock, Individually and as One of the Administrators with the Will Annexed, etc., of Benjamin Hallock, Deceased, and Others, Respondents

John J. Hallock, Individually and as One of the Administrators with the Will Annexed, etc., of Benjamin Hallock, Deceased, and as Executor, etc., of Harriet Hallock, Deceased, Appellant, v. Horace H. Hallock, Individually and as One of the Administrators with the Will Annexed, etc., of Benjamin Hallock, Deceased, and Others, Respondents. Complaint to enforce a provision of a husband’s will directing the payment from his estate of the debts and funeral expenses of his wife—when it states a cause of action—payment thereof directed from the husband’s estate before the wife’s property is exhausted, but subject to the prwr payment of the husband's debts—how such debts may be ascertained—stay until they a/re ascertained. The complaint in an action brought in the Supreme Court by John J. Halloclc, individually and as one of the administrators with the will annexed of Benjamin Halloek, deceased, and as executor of Harriet Halloclc, deceased, against Horace H. Halloek, individually and as one of the administrators with the will annexed of Benjamin Halloek, deceased, and others, alleged that Benjamin Halloek died December 84, 1884, leaving a will, by which, after the payment of his debts, he gave to his widow, Harriet Halloek, all of his property during her life and empowered her to use and sell all or any of his personal property for the support of herself and his infant son Samuel; that the will further directed that, upon the death of Harriet Halloek, the debts then owing by her, her funeral expenses and the cost of tombstones for her grave should be paid from his estate and charged both his real and personal estate with the payment of the same; that the testator bequeathed §500 to his daughter Hattie B. Hal-lock and made it a lien upon his real estate and gave the balance of his property to his son Samuel. The complaint further alleged that the testator left several other children surviving him, one of whom was the. plaintiff; that the widow was appointed administratrix with the will annexed of his estate; that Samuel Halloek died leaving a wife and child and that Horace H. Halloek was appointed administrator of his estate,; that Harriet Halloek had also died leaving a will of which the plaintiff,was appointed executor; that at the time she died she was still the administratrix with the will annexed of her husband and held property of that estate unadministered; that subsequently the plaintiff and Horace H. Halloek were appointed administrators with the will annexed of the estate of Benjamin Halloek, which estate consisted of real and personal property; that when the widow died she was indebted to the plaintiff and others in amounts, some of which were stated in the complaint and others of which were unknown; that her funeral expenses were also unpaid; that the widow’s estate and the personal estate of her husband were together insufficient to pay her debts; that her husband left certain described real estate; that after her husband’s death and prior to the death of the widow, an instrument purporting to be a deed by the widow and her son Samuel to Horace H. Hallock, of certain premises, was placed upon record and that such deed was not executed by the widow, but was a forgery; that subsequently Horace H. Hallock deeded the property to his wife and that thereafter he and his wife mortgaged the property to one Hutting; that the widow and her son Samuel and Horace H. Hallock and his wife were not the owners of the property when the deeds and mortgages were given and that the same were void; that the real and personal property of the husband’s and widow’s estates was insufficient to pay the debts of both estates. All the parties interested were made defendants and judgment was demanded that the deeds and mortgages described be set aside and canceled of record; that a trust be imposed, in favor of the creditors of the widow, upon all the real property described and that their debts be declared to be liens thereon; that an accounting be had as to the debts of the husband and widow; that the real estate be sold and the proceeds applied to the payment of the debts of both estates; that a receiver be appointed and that such other relief as might be just be granted. Held, that the complaint stated a good cause of action to charge the widow’s debts and funeral expenses upon the real and personal estate of her husband and, as incidental thereto, for a construction of the husband's will, and that the ‘ plaintiff was entitled to maintain such an action; That it was not necessary that the real or personal estate of the wife should be applied to the payment of her debts before the real and personal estate of the husband was appropriated for that purpose, but that their payment from the husband’s estate was subject to the prior payment of his debts therefrom; That the debts and funeral expenses of the wife could be established in the action, and that, if it Were necessary to ascertain by proceedings in the Surrogate’s Court, the names of the creditors of the husband’s estate and the amount of their claims before disposing of the property of the husband’s estate or of the proceeds of the sale thereof, a stay might be granted for that purpose. Appeal by the plaintiff, John J. Hallock, individually and as one of the administrators with the will annexed,-etc., of Benjamin Hal-lock, deceased, and as executor, etc., of Harriet Hallock, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 3d day of June, 1902, upon the report of a referee dismissing the plaintiff’s complaint on the ground that it does not state facts sufficient to constitute a cause of action. Frank E. Young, for the appellant. F. B. Gill, for the respondents Horace H. Hallock and another. Johnson & Todd, for the respondent Nutting. ,Basil B. Aylesworth, guardian ad litem, for the respondent Jennie Hallock. [MAJORITY — Williams, J.:] Williams, J.: The judgment should be reversed and a new trial granted, with costs to appellant to abide the event. The complaint was dismissed because it did not state facts sufficient to constitute a cause of action, in that it failed to show that the personal estate of Benjamin or that of Harriet Hallock had been applied to the payment of the debts or claims set forth in the complaint, or that any of said debts or claims had been presented to the representatives of either of the said estates, or that any personal judgment had been recovered against the persons or their representatives, who are alleged, as devisees, to have alienated the land described in the complaint, or that more than three years had elapsed since administration was granted upon the estate of Benjamin or of Harriet Hallock, or that any accounting had been had, or any proceedings in the matter of either estate, to lay the foundation by creditors or claimants of the decedent to take his devised real estate. ■ The complaint alleged the death of Benjamin Hallock December 24, 1884, leaving a will, which was admitted to probate January 22, 1885, and that his widow was appointed administratrix with the will annexed; that the will, after payment of his debts, gave his widow all his property during her life, and empowered her to use and sell all or any of his personal property for the support of herself and his infant son Samuel, and directed that upon the death of the widow the debts then owing by her, her f%meral expenses and costs of tombstones for her grave be paid from his estate, and cha/rged his real a/nd personal estate with the payment of the same, gave his daughter Hattie R. $500, and charged it as a lien upon his real estate, and gave the balance of his property to his said son Samuel; that he left at his death, besides his wife and son Samuel, and daughter Hattie R., several other children, named in the complaint, and among them the plaintiff; that his daughter Hattie R. has since died, leaving no husband or children; that his son Samuel has since died, leaving a wife and child, and Horace H. Hallock was appointed administrator of his estate; that the widow died Hay 12; 1898, leaving a will, admitted to prohate Harch 29, 1899, and plaintiff was appointed executor thereof; that she was at her death still administratrix with the will annexed of her husband, and had property of that estate unadministered; that February 8, 1901, the plaintiff and Horace H. Hallock were appointed administrators with the will annexed of the husband’s estate; that such estate consisted of real and personal property; that when the widow died she was indebted to plaintiff and others, in amounts, some of which were stated in the complaint, and others unknown, and there was also her funeral expenses; that the estate of the widow and the personal estate of the husband were together insufficient to pay the debts’ of the widow; that the husband left real estate, which was déscribed in the complaint; that after the husband’s death and on February 13, 1889, an instrument in writing was recorded in the clerk’s office, dated February 11, 1889, purporting to be a deed by the widow and the son Samuel to Horace H. Hallock, conveying premises described ; that the same was not executed by the widow, but was a forgery; that July 17,1895, Horace H. deeded this property to his wife, and the deed was recorded the same day, and that Hovember 8, 1899, Horace H. and wife mortgaged this property to Hutting for $600, and the mortgage was recorded; that the widow and son Samuel and Horace H. and his wife were not owners of the property when the deeds and mortgages were given, and same were void; that plaintiff requested Horace H. as administrator with the will annexed of the husband to join with plaintiff in this action and he refused, and that the íeal and personal property of the husband and widow’s estates were together insufficient to pay the debts of both estates. All the parties interested were made defendants, and upon the facts alleged judgment was demanded that the deeds and mortgage described be set aside and canceled of record; that a trust be imposed upon all the real property described in favor of the creditors of the widow, and their debts declared to be liens thereon; that an accounting be had as to the debts of the husband and widow; that the real estate be sold, and the proceeds applied to the payment of the debts of both estates; that a receiver be appointed and such other relief as might be just be granted. For the purpose, of this appeal all these facts must be deemed established, and then if the plaintiff was entitled to any relief, the complaint was improperly dismissed. The complaint states a. good cause of action to charge the debts owing by the widow at her death and her funeral expenses upon the real and personal estate of her husband and as incidental thereto for a construction of his will. It cannot be said that there is no dispute as to the meaning of the will, because the defendants claim that the widow’s estate must be first applied to the payment of her debts and funeral expenses before resort can be had to the property of the husband, which the plaintiff disputes. Very likely this relief can only be had by action in the Supreme Court, the Surrogate’s Court not having jurisdiction to grant the relief. At all events it is quite certain that the Supreme Court has such jurisdiction. The provision of the husband’s will for the payment of the debts and funeral expenses of his widow was in the nature of a legacy and not like a provision for the payment of his own debts, and the plaintiff personally and in his character of representative of the widow’s estate is in a position to maintain this action to establish a charge of her debts and f uneral expenses upon the husband’s real and personal property. (Hogan v. Kavanaugh, 138 N. Y. 417.) In that case it was distinctly held that “ An action in equity is maintainable to have a legacy declared to be a charge upon land.” In that case there had been no administration of the estate. Ho executors had been appointed at all. It was held that such action was not a suitable and appropriate proceeding for ascertaining who were creditors, and the amount of their claims, or to close up the estate, without administration or resort to the procedure prescribed by the Code of Civil Procedure (§ 2717 et seq., § 2749 et seq.). for the proof of debts and payment thereof from the personalty, or, if insufficient, the sale of the realty for that purpose. The judgment was, therefore, modified by allowing the part thereof which declared the legacies a charge upon the land to stand, and directing that the sale of the land for such legacies be subject to the rights of the creditors to be first paid out of the fund, but only after such debts had been duly established in Surrogate’s Court, and such proceedings had as would authorize proceedings for the sale of the real estate for the payment of debts, and until such proceedings were had the sale of the real estate be stayed. It will be observed that the charge of the legacies was there made upon lands only. Here the charge is upon lands and personal property also. Such charge would be subject to the payment of the debts of the husband to be first made. It does not appear that the creditor's of the husband’s estate or the amount of their claims have been ascertained in the Surrogate’s Court. And from the allegations in the complaint we may assume that proceedings for that purpose have not been had. The husband died eighteen years ago, and the widow was appointed executrix soon after, and acted as such until her death, a period of fourteen years. It is hardly probable under these circumstances that any debts of the husband’s estate remain unpaid, but such debts, if any are established, would be entitled to payment prior to the application of the personal or real property to the payment of the debts of the widow existing at her death. There is no reason, however, why the debts and funeral expenses of the wife should not be established in this action. They are not debts against the estate of the husband, and they are not required to be proved against the estate of the wife in order to be entitled to payment under the will of the husband. That will provides for the payment of the debts and funeral expenses of the wife, without reference to whether there is property of the wife’s estate applicable to their payment or not. It is only necessary that they should be shown to be debts owing by the wife when she died and her funeral expenses in order to make them a charge upon the real and personal estate of the husband. There is no necessity that the real or personal estate of the wife should be exhausted before the real and personal estate of the husband is appropriated for this purpose. There seems to be a good reason why the plaintiff should be allowed, as early as possible, to follow and recover the real and personal estate of the husband. Some of it has been disposed of or attempted to be, by reason of a forged deed, and liens attempted to be created thereon, and the court should retain this action for the purpose of affording such relief as is proper herein, and if it is necessary thereafter before disposing of such property or the proceeds of the sale thereof, to take proceedings in Surrogate’s Court to ascertain what creditors there are of the husband’s estate and the amount thereof, a stay-may be granted for that purpose, the same as was done in the Hogan-Kavanaugh Case (supra). These suggestions lead to the -conclusion' that the judgment dismissing the complaint herein was improperly ordered, and that the same should be reversed and a new trial granted, with costs to the appellant to abide event. McLennan, Spring, Hiscock and Nash, JJ., concurred. Judgment reversed and new trial ordered, with costs to the appellant to abide event.