¶1The complaint in brief shows that the plaintiff had a claim against the estate of which the defendant appellant is the executor, amounting to $2,134.13, with interest thereon from February 3, 1898; , that defendant’s testator died April 11, 1890, leaving a will of real and personal estate, which was duly probated in Ontario county, and letters testamentary were issued to the appellant June 16,1890; that more than three years have elapsed since the granting of such letters and since the death of such testator; that the personal assets of such testator were not sufficient to pay plaintiff’s debt, in addition to the expenses of administration and the debts of a prior class; that all the real estate of which said testator died seized was sold in an action for the foreclosure of a mortgage thereon, and in such action there was paid into the Ontario county treasury, as surplus funds arising upon such sale, the sum of $1,319.39 ; that each of the defendants have, or claim to have, as heir at law, legatee or devisee, some interest in said surplus funds, and that the interest therein which descended to the heirs at law would not be sufficient to pay the plaintiff’s claim; that no proceedings have been had at law or otherwise, and no other action has been brought to recover plaintiff’s claim herein; and then plaintiff demands judgment that the amount of his debt be declared and adjudged as a lien upon such surplus, and that the same may be awarded to the plaintiff, with such other relief as may be just.
¶2It is difficult to ascertain from the complaint itself, or from the brief of the respondent upon this appeal, precisely what the cause of action is claimed by the respondent to be. At one time he seems to claim it is an action against the executor to recover a judgment upon plaintiff’s claim, at another he seems to claim that the action is under section 1831 et seq. of the Code of Civil Procedure, against next of kin, legatees, heirs and devisees. We may as well conclude that the action is brought as the prayer for relief indicates, to have the plaintiff’s claim declared to be a lien upon the surplus moneys, and to have the moneys awarded to plaintiff thereon.
¶3*82■ It does not seem to us that the complaint is sufficient to entitle the plaintiff to such relief in the action.
¶4First. It is provided by section 2798 of the Code of Civil Procedure, in effect, that such surplus moneys, if they result from a sale of the real estate, within four years after the issue of letters testamentary, must, after payment of all liens thereon existing at the time of the death, be paid into the Surrogate’s Court, pursuant to section 2537. And by section 2537 it is provided that payment into Surrogate’s Court is made by paying to the county treasurer to the credit of the estate.
¶5The complaint does not show whether the sale from which this surplus arose took place within the four years or not. It does not state when the sale took place. And more than this, the complaint does not show whether the surplus was paid into the Supreme Court or the Surrogate’s Court. The allegation is that it was paid into the coumty treasury, and it would be in the treasurer’s hands whether paid into one court or the other. If the surplus is in the Surrogate’s Court, or is entitled to be paid into that court, as provided by section 2798 of the Code of Civil Procedure, then the same can only be disposed of by the surrogate under proceedings prescribed by the Code of Civil Procedure, and this action to establish a lien thereon, and to recover the same, cannot be maintained.
¶6In this respect the complaint fails to state facts sufficient to constitute a cause of action.
¶7Second. The complaint does not state facts sufficient to constitute a cause of action under section 1837 et sey. of the Code of Civil Procedure. It does not state what disposition, if any, the will made of the real estate, whether the executor or any of the defendants were given any interest therein, or whether the defendants were any of them next of kin, legatees, heirs or devisees of the testator. Nor does the complaint show that the action was brought against all the heirs or devisees of the testator, as required by section 1846.
¶8The complaint is not good, is entirely insufficient, and defendants should not be compelled to answer and go to trial upon such a pleading. If the plaintiff has a cause of action he should set it out in his complaint, so that the defendants may understand it.
¶9*83The judgment overruling the demurrer appealed from should be reversed, with costs of appeal, and the demurrer sustained, with costs, and with the usual leave to plead over, upon payment of costs.
¶10All concurred.
¶11Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiffs to amend their complaint upon payment of the costs of the demurrer and of this appeal.