§ 134. Next of kin defined. The term "next of kin," as used in the last three sections of this article includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife, except if decedent leaves surviving a father and mother but no widow, child or descendant, it shall mean both the father and the mother. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, §§ 1870, 1905. ARTICLE 6. (Article added by L. 1920, ch. 919, in effect April 15, 1921.) ACTION BY OR AGAINST AN EXECUTOR OR ADMINISTRATOR; PRACTICE REGULATIONS. SECTION 140. Executor and administrator; how to sue or be sued. 141. When personal and representative causes of action may be joined. 142. Separate dockets and executions. 143. Regulations, when some of the executors are not summoned. 144. Executors who have not qualified not necessary parties. 145. When action not to abate by death. 146. Action upon refusal to pay legacy or distributive share. 147. Action by infant for legacy or distributive share; guardian's bond. 148. When action barred by judgment against heir or devisee. 150. Want of assets not to be pleaded by executor or administrator. 153. Security before grant of order. 154. Execution on former judgment. superseded. or administrator who has been 156. False pleading by executor or administrator. 157. When inventory may be contradicted. 158. Liability for uncollected demands. 159. The last two sections qualified. 160. Foreign executor or administrator may sue or be sued. § 140. Executor and administrator; how to sue or be sued. An action or special proceeding, hereafter commenced by an executor or administrator, upon a cause of action, belonging to him in his representative capacity, or an action or special proceeding, hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1814. § 141. When personal and representative causes of action may be joined. An action may be brought against an executor or administrator, personally, and also in his representative capacity, in either of the following cases: 1 1. Where the complaint sets forth a cause of action against him in both capacities, or states facts, which render it uncertain in which capacity the cause of action exists against him. 2. Where the complaint sets forth two or more causes of action against the defendant, in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action; do not require different places or modes of and are not inconsistent with each other. trial; In a case specified in this section, a judgment for the plaintiff for a sum of money must distinctly show whether it is awarded against the defendant personally, or in his representative capacity. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1815. § 142. Separate dockets and executions. In a case specified in the last section, or where costs, to be collected out of the individual property of an executor or administrator, are awarded in an action by or against him in his representative capacity, so much of the judgment, as awards a sum of money against him personally, may be separately docketed, and a separate execution may be issued thereupon, as if the judgment contained no award against him in his representative capacity. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1816. § 143. Regulations, when some of the executors are not summoned. In an action or special proceeding against two or more executors or administrators, representing the same decedent, all are considered as one person; and those who are first served with process, or first appear, must answer the plaintiff. Separate answers, by different executors or administrators cannot be required or allowed, except by direction of the court. Judgment in favor of the plaintiff may be entered, and, in a proper case, execution may be issued against all the defendants as if all had appeared. But this section does not affect the plaintiff's right to bring into court all the executors or administrators who are parties. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1817. § 144. Executors who have not qualified not necessary parties. One of two or more executors to whom letters testamentary have not been issued is not a necessary party to an action or special proceeding in favor of or against the executors in their representative capacity. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1818. § 145. When action not to abate by death. Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of an executor, administrator or a person appointed by a surrogate, as prescribed by law, to dispose of the real property of a decedent, his death or removal does not abate the action or special proceeding; but the same may be continued by his successor, who must, upon his application, or that of a party interested, be substituted for that purpose by the order of the court, a copy of which must be annexed to the judg ment-roll. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, §§ 766, 1828. § 146. Action upon refusal to pay legacy or distributive share. If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him, as the case requires. But for the purpose of computing the time, within which such an action must be commenced, the cause of action is deemed to accrue, when the executor's or administrator's account is judicially settled, and not before. (Added by L 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1819. § 147. Action by infant for legacy or distributive share; guardian's bond. The guardian ad litem of an infant, in whose favor an action is brought, as prescribed in the last section, must, unless he is also the general guardian, execute and file with the clerk, before the commencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by a judge of the court, conditioned that the guardian will duly account to the infant, when he attains full age, or, in case of his death, to his personal representatives, for all money or property, which the guardian may receive, by reason of the legacy or distributive share. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1820. § 148. When action barred by judgment against heir or devisee. A final judgment against an heir or devisee bars an action against the executor or administrator of the decedent, for the same cause, and every other remedy to enforce payment thereof out of the decedent's property, unless an execution against property issued upon the judgment has been returned wholly or partly unsatisfied, or sufficient real property to satisfy the judgment has not descended, or been devised, to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1821. § 149. Decedent's real property not bound by judgment against executor or administrator. Real property, which belonged to a dccedent, is not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly directs the sale thereof. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1823. § 150. Want of assets not to be pleaded by executor or administrator. In an action against an executor or administrator, in his rep resentative capacity, wherein the complaint demands judgment for a sum of money, the existence, sufficiency, or want of assets, shall not be pleaded by either party; and the plaintiff's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in such an action is not evidence of assets in the defendant's hands. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1824. § 151. Leave to issue execution against executor or administrator. Except as provided in this section, an execution shall not be issued, upon a judgment for a sum of money, against an executor or administrator, in his representative capacity, until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued. Such an order must specify the sum to be collected, and the execution must be indorsed with a direction to collect that sum. If a judgment be jointly against an executor or administrator in his representative capacity and one or more other parties, execution may be issued the reon, without such order, against such other party or parties, but it must have indorsed thereon a direction not to levy against any property to the possession of which such executor or administrator as such is or may be entitled. (Added by L. 1920, ch. 919, in effect April 15, 1921.) Derivation: Code of Civil Procedure, § 1825. |