majority">Nelson, Ch. J.

By the Court, The first and third pleas are founded upon the doctrine of the case of Dox v. Backenstose, adm'x, &c. 12 Wendell, 542, but I am of opinion it does not apply. There a judgment had been rendered against the administratrix, and the sci. fa. issued to obtain execution, after the year, The plea was sustained, because by the. 2 B. S. 88, § 32, no execution could issue on a judgment against an executor or administrator, until an account of administration had been taken and settled, or by order of the surrogate; and a pretty strong intimation was given that it might be issued-by such order without any revival. But here the judgment is against the testator, and the object of the proceeding is to charge the executors on that judgment. The case is not within the statute, nor does it come within it until the judgment of revival is entered. After [ *479 ] that, being a judgment against the executors, it-may stand *on *479the footing of Dox v. Backenstose. I am inclined to think the intimation in that case, that the order of the surrogate is sufficient to authorize the issuing of the execution, without a revival, should be adopted. That officer, as there remarked, possesses ample power to adjust any defence that may exist against the judgment: indeed, the reason given for refusing the writ of sci. fa. is that under the act, the estate must first be settled, so as to ascertain the amount for which execution may issue : after this the proceeding would be the merest form. This view, if sound, affords an additional consideration for the proceeding here, for until judgment of revival is obtained against the executors, the surrogate has no control over the execution.

The second and fifth pleas I am of opinion.constitute a bar to the action. The statute (2 R. 8. 477 § 2,) requires that a sci. fa. to revive a judgment against the personal representatives, shall issue within one year after the cause of issuing the same shall arise. The cause is the death of the defendant in the judgment, and that makes the revival by this proceeding necessary. But until the executor qualifies, the plaintiff should not be bound to commence proceedings; the year should then begin to run. The object of this provision is apparent, namely, to enable the executor or administrator to close the settlement of the estate within the eighteen months prescribed by statute, (2 R. 8. 32, § 52,) after which time he is bound to render and adjust his accounts before the surrogate. Though the limit of the year is short, 1 do not perceive any particular hardship in the case : it is desirable the estate should be settled within a reasonable time.

Where a creditor has neglected to present his account within the six months, according to the 34 § 2 R. 8. 88, and a suit is afterwards brought, the executor or administrator is not chargeable for assets paid before such suit on claims of an inferior degree; and if the demand has been presented, and disputed or rejected, and not referred, unless the suit is commenced within six months, if due, or within six months after due, he is forever bar' red from maintaining any action thereon, § 38, 39. But to produce this consequence *from neglect in both cases, the executor [ *480 ] or administrator must prove publication of notice to creditors to come in. Though the demand has not been presented, he may still recover against the next kin or legatees to whom assets have been paid. § 42.

In this case the plaintiff has still his lien upon the realty, and may enforce it against the heir or terre-tenant, or if that is sold under the surrogates’s order, the judgment takes preference according to the lien. And probably under the 42 §, the next kin or legatee may still be liable if as. sets have been paid to them.

The fourth plea is clearly bad. 7 Johns. R. 207 ; 17 id. 174; 20 id. 78.

Judgment for plaintiff on the demurrer to the first, third and fourth pleas, and for the defendant on the second and fifth; leave to amend on usual terms.

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