N.Y. Estates, Powers & Trusts Law § 11-4.6: Leave to issue execution against personal representative; how

§ 11-4.6 Leave to issue execution against personal representative; how

procured; order and contents thereof; security before order

granted; execution on judgment recovered by predecessor

representative

(a) Leave to issue execution against personal representative.

Except as provided in this paragraph, an execution shall not be issued

upon a judgment for a sum of money against a personal representative, in

his representative capacity, until an order permitting it to be issued

has been made by the surrogate's court from which letters were issued.

Such an order must specify the sum to be collected, and the execution

must be endorsed with a direction to collect that sum. If a judgment is

rendered jointly against a personal representative in his representative

capacity and one or more other parties, execution may be issued thereon,

without such order, against the other party if a direction is endorsed

thereon not to levy against any property which the personal

representative is or may be entitled to possess in his representative

capacity.

(b) How leave procured; order; contents thereof.

At least six days notice of the application for an order specified in

paragraph (a) must be personally served upon the personal

representative, unless it appears that service cannot be so made with

due diligence, in which case notice must be given to such persons and in

such manner as the surrogate directs by an order to show cause why the

application should not be granted. Where it appears that the assets,

after payment of all sums chargeable against them for expenses and for

claims entitled to priority as against the plaintiff, are not, or will

not be sufficient to pay all the debts, testamentary dispositions or

other claims of the class to which the plaintiff's claim belongs, the

sum directed to be collected by the execution shall not exceed the

plaintiff's just proportion of the assets. In that case, one or more

orders may be subsequently made in like manner, and one or more

executions may be subsequently issued, whenever it appears that the sum

directed to be collected by the first and subsequent execution is less

than the plaintiff's just proportion.

(c) Security before grant of order.

Where a judgment has been rendered against a personal representative

in his representative capacity for a testamentary disposition or

distributive share, the surrogate, before granting an order permitting

an execution to be issued thereupon, may, and in a proper case must,

require the applicant to file in his office a bond to the defendant, in

such a sum and with such sureties as the surrogate directs, to the

effect that if, after collection of any sum of money by virtue of the

execution, the remaining assets are not sufficient to pay all sums for

which the defendant is chargeable for expenses, claims entitled to

priority as against the applicant, and the other testamentary

dispositions or distributive shares of the class to which the

applicant's claim belongs, the plaintiff will refund to the defendant

the sum so collected, or such ratable part thereof as is necessary to

make up the deficiency.

(d) Execution on former judgment.

An execution may be issued in the name of a personal representative,

in his representative capacity, upon a judgment recovered by any person

who preceded him in the administration of the same estate, in any case

where it might have been issued in favor of the original plaintiff, and

without a substitution.