24 Barb. 60 | N.Y. Sup. Ct. | 1857
The order of the 2d of December, 1854, directing the appellant to render an account, &c., was not appealed from within thirty days, and cannot, therefore, be reviewed on this appeal, which was not taken until
Assuming that the respondent, by reason of its relations to this demand, should, for the purposes of these proceedings, be regarded in the light of a creditor of the estate of Charles Carroll of Carrollton, the existence of any demand in its favor
In ordinary cases of final settlements, the surrogate is directed, if it shall appear that any claim exists against the estate, which is not due, or upon which a suit is pending, to allow a sum sufficient to satisfy such claim, or the proportion to which it shall he entitled, to he retained for the purpose of being applied to the payment of such claim when due, or when recovered, or of being distributed according to law. (2 R. S. 96, 5 74.) That the previous 71st section by which the surrogate is required to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share, &c., does not include the power to adjudicate a disputed claim, is shown in a manner satisfactory to me, in the opinion of Ogden, surrogate, to which I have referred. If it were otherwise, a surrogate might determine issues upon the genuineness of the signature to a note which was the evidence of a claim; of fraud and undue influence in the procurement of an obligation upon which the claim was founded ; of the capacity of the testator or intestate at the time of the transaction- upon which his estate is sought to be charged; of payment, of set off; of recoupment, and, indeed, nearly all the questions which arise in actions upon contracts in courts of record. Before such extensive common law powers can be exercised by surrogates, the legislature should manifest their intention to that effect in more unequivocal language than they have yet used, or, as I apprehend, they will soon use.
But the respondent in this case was not a creditor of the estate of Charles Carroll of Carrollton, so as to be entitled to-a decree from the surrogate, even if the claim had not .been disputed. It was in no sense a creditor of that estate. The estate of Charles Carroll of Bellevue was the respondent’s debtor from the time of the assignment of the bond, until the judgment against the latter estate was satisfied; arid after that, the appellant and respondent held a relation to each other, of attorney and client, or of trustee and cestui que trust; precisely in this view, like the assignee of a chose in action not
If the foregoing views are correct, the decree of the surrogate should be reversed, with costs of the appeal, and the proceedings be remitted, &c.
Ordered accordingly.
T. R. Strong, Welles and Smith, Justices.]