17 How. Pr. 300 | N.Y. Sup. Ct. | 1858
The respondent makes various objections to the plaintiffs’ claim, upon either of which he insists that the decree of the surrogate rejecting the same ought to be affirmed. 1st. It is alleged that the claim in question never was a valid and subsisting demand, in any proper sense of the term. 2d. That it never was such a demand against the estate of the intestate, and must possess that character in order to be entitled to share in the proceeds of the real estate. 3d. That if it ever had any legal validity, it became barred by the statute of limitations, and has not been in any way revived by payments upon the same.
1. The character of the plaintiff’s claim, and its validity and effect, must be determined by a reference to the statutory provisions upon that subject. This was a final accounting upon the application of the administratrix, all persons interested as creditors and next of kin are required to be made parties thereto (2 R. S. 279, 4th ed.); they must be presumed to have been so, the proceeding is of no validity against them, unless they were. In this view, the respondent or his intestate is presumed to have been cited to attend such accounting, and in that event, it would be conclusive upon him to the extent fixed by the statute. It does not expressly appear, whether the respondent was a party to such accounting, perhaps the question is not material, as no objection is made to the accounting
2. It being thus established as a debt, is it a debt to be paid out of the proceeds of the real estate ? By section 1 (2 R. S. 285, 4th ed.), administrators may apply for an order to sell so much of the real estate of the intestate as shall be necessary “ to pay his debts." The petition shall set forth such debts. (Section 2.) The debts against the testator or intestate may be contested on the hearing of the application. (Section 13.) The surrogate is to enter in a book the demands which upon such hearing he shall adjudge valid and subsisting against the estate of the deceased (section 16), and is to make no order of sale, unless satisfied that the debts, for the purpose of satisfying which the application is made, are justly due and owing, that the personal estate is insufficient for that purpose, and that the whole of the personal estate applicable to the payment of the debts of the deceased has been duly applied for that purpose. (Section 17.) The proceeds of the sale having been paid into the surrogate’s office, he is first to satisfy thereout the charges and expenses of the sale; next, the widow’s claim of dower; and “ if, after the deductions aforesaid, from the proceeds of such sale, there shall not be sufficient remaining to pay all the debts of the testator or intestate, then the balance of such proceeds shall be divided by the surrogate among the
But this view of the case is not necessarily destructive of the plaintiffs’ entire claim, and, perhaps, not of any part of it.
3. The remaining question is, whether the plaintiff’s demand is barred by the statute of limitations ? The respondent claims that it is, that at best it is to be treated as a simple con
In order to test the character of this claim, we must look at the facts already established. Mrs. Casey was the equitable assignee of the demands of certain creditors of Joseph P. Casey, deceased. Those must be presumed to have been simple contract debts, there is no evidence that they possessed a higher eharacter. We are not referred to their dates, and are not able to say whether, in their original form, they had or had not become barred by the statute of limitations, during the ten years which elapsed from the time Mrs. Casey took out letters upon the estate of her husband, in 1839, to the time of the surrogate’s decree on final accounting, in 1849. Be that as it may, in 1849, we find her the representative of her husband’s estate, having exhausted the personal assets, in possession of a demand against his estate, liquidated by the surrogate at $832.41, and entitled to payment therefor or some part thereof out of the real estate of the deceased. What was there from that moment to prevent her from seeking satisfaction for that demand in a competent tribunal ? It is said that she could not proceed as administratrix to obtain an order of sale from the surrogate, because the three years had expired from the
But it is a very different question whether it had a twenty years’ duration as against the real estate, or the parties repre
The decision of the surrogate should be affirmed with costs.