1 Bradf. 224 | N.Y. Sur. Ct. | 1850
The petitioner, Duncan P. Campbell, claims to be a creditor of the deceased, and prays for an account, and payment of his demand. The executor, Herman Bruen, in his answer, denies any knowledge of the claim, and insisting upon full proof thereof in a Court of competent jurisdiction, excepts to the jurisdiction of the Surrogate. The answer also sets up in bar, the statute of limitations, and presumption of payment.
The deceased died in 1828, and letters testamentary were issued to George .W. Bruen, October 9, 1828. He was superseded as executor, October 28,1846, and letters were granted January 19, 1847, to Herman Bruen, one of the executors named in the will who had not previously qualified.
I shall now proceed to consider the two questions involved in the case, in the order they were presented.
1. As to jurisdiction. The petitioner swears positively that he is a creditor of the deceased, and specifies the basis of his demand with particularity. It cannot be questioned that I have authority upon this sworn petition to cite the executor to account, more than eighteen months having elapsed since his appointment. (2 H. /S'., 3d ed., p. 155, § 55.) After eighteen months an executor may be required 0 to render an account, either on the application of some person having “ a demand” against the personal estate of the deceased, as “ creditor,” legatee, or next of kin, or by the Surrogate on his own motion without such application. The 58th Section then directs the mode of rendering such an account, and authorizes the examination of the executor or administrator touching the payments, the property of the deceased, and its disposition. “ This however com
As yet, however, no authority Was conferred upon the Surrogate to decree the payment of a debt, on the application of the creditor. The law as then existing (1 JR. L., 311,448), provided for an account only, in such case. But having directed the Surrogate to decide upon all debts, and decree payment, on a final accounting, whenever demanded lawfully by the executor or administrator, it was quite consistent in principle, to give him the like jurisdiction on the demand of the creditor, and the Bevisers consequently reported provisions to meet that end. They state that in the effort to reduce the law relating to the estates of deceased persons into some order. (3 R. S., 2d ed., $>. 625), their chief object had been to effect a settlement of the estate of deceased persons, and to cause a distribution to be made as speedily as possible {Ibid., $>. 626), and that one of the provisions inserted for that purpose, was “ to compel an account by the administrator, &c.,
2. The demand arises on a covenant or agreement under seal, to indemnify the petitioner against a claim of Clark
The petitioner claims interest, but I do not think him entitled to it, except from the time of filing his petition. It is not necessary that the amount demanded be liquidated, in order to carry interest (Van Rensselaer vs. Jewett, 2 Comstock, 135), but it is requisite there should be a default, interest being given by way of compensation, from the time the default occurred. The covenant in this case is not to pay at a certain time, so that a default occurs eo m