34 A.D. 387 | N.Y. App. Div. | 1898
The petitioner, having obtained a judgment against the executors for a legacy left to it under the last will and testament of the testator, applied to the surrogate for authority to issue an execution ■ upder the. provisions of sections 1825 and 1826 of the Code of Civil Procedure. The testator died in the city of New York in the year ■
By section 1826 of the Code it is provided that where upon an application for- leave to issue an execution it appears that the assets in the hands of the' executors* after payment of all sums chargeable against them for expenses, and for claims entitled to priority as against the plaintiff, aré not, or will not be sufficient to pay all the debts, legacies 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. By this answer of the executors a question was presented to be determined by the surrogate as to the amount of the assets of the estate in the hands of the executors. And by section 2725 of the Code, subdivision 1, it is provided that the surrogate may, in his discretion, make an order requiring an executor or administrator to render an intermediate account “ where an application for an order, permitting an execution to issue on a judgment against the executor or administrator, has been made by the judgment creditor, as ■ prescribed in section 1826 of -this act.” Thus, by the express provisions of the Code.the surrogate, in.his discretion, had the power to require an intermediate accounting upon such an application to determine the question of the amount of assets in the hands of the executors. The defense of the Statute of Limitations interposed by the executors is
The order appealéd from is right and is affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and MoLauohlin, JJ., concurred.
Order affirmed, with costs.